First Appeal v. Khagendra Kumar Shrivas @ Khagesh Kumar

Mr. Gyan Prakash Shukla, Advocate with For State/Respondent No.4 : Mr. Dashrath Prajapati, PL Mr. Ravikar Patel, Advocate (Hon’ble Shri Justice Naresh Kumar Chandravanshi) 1C A V Judgment 2

2. With the consent of learned counsel for both the parties, the matter is heard finally. This appeal has been preferred by appellants/defendants under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 26.9.2022 (Annexure-A/1) passed by Second Additional District Judge, Sakti, District Janjgir-Champa (CG) in Civil Suit No.29A/2016, whereby civil suit filed by the respondent No.1/ plaintiff for declaration of his title and permanent injunction and cancellation of registered sale deed dated

12.11.2014 (Ex.P1) in respect of suit property, against the appellants/ defendants has been allowed and decree has been granted in his favour. (For sake of convenience, the parties would be referred to as per their status shown before the trial Court) 3 FA No. 152 of 2022

3. Facts of the case, in a nutshell are that, plaintiffs and defendants are family members, governed by Hindu law and following genealogical tree would demonstrate the relationship among the parties. Nakul Ram (Died) Smt. Bindumati (Wife) (sons) Deendayal Ramdayal Samaylal Dashrath Shyamlal Sonauram (died) Rajkumari Khagendra (Daughter) (Son) Father and mother of plaintiff died prior to 2005, at that time plaintiff was minor, therefore, he was nurtured and taken care by defendant No.1 Samaylal, who is elder brother of father of plaintiff (bade pita). It is averred by plaintiff that land bearing Khasra No.2164/2 area 0.234 hectare situated at village Hasaud, District Janjgir Champa had fallen in the share of his father in family partition, who cultivated it in his lifetime. Sonauram died in the year 2003, thereafter, plaintiff became owner of aforesaid land, on which defendant No.2 cultivated on his behalf, at that time, plaintiff was minor and handicapped also. Taking undue advantage of it, defendant No.1 Samaylal got registered sale deed dated 12.11.2014 for sale consideration of Rs.10 Lacs in favour of original defendant No.2 Smt. Bindumati, who was his mother and grandmother of plaintiff of area 4 FA No. 152 of 2022

0.117 hectare, out of 0.234 hectare of khasra No.2164/2 (that sold land area 0.117 hectare of Khasra No.2164/2 will be referred henceforth as ‘suit land’). It was fictitious sale deed as it got registered without payment of actual sale consideration to the plaintiff that too while registration of that sale deed, plaintiff was minor and handicapped, hence, it was registered by defendant No.1 Samaylal showing himself to be guardian of plaintiff. Further, it was got registered withouht permission of the competent authority. It is further averred that though sale deed has been executed illegally, but, plaintiff is still in possession over the suit land, however, it has been mutated by defendant No.2 in her name. Since aforesaid sale deed has been got executed illegally, plaintiff filed civil suit through his elder sister by executing special power of attorney in her favour seeking relief of declaration of his title over the suit land by declaring sale deed dated 12.11.2014 null and void and further seeking relief of permanent injunction against defendants.

4. During pendency of civil suit, original defendant No.2 Smt. Bindumati died, therefore, her legal representatives (LRs) were brought on record. Her Lrs, defendants No. 2a, 2b, 2c and 2e filed their joint written statement stating inter-alia that khasra No.2164/2 rakba 0.234 hectare (0.58 decimel) had fallen in the share of defendant No.1 Samaylal and Sonauram (father of plaintiff), therefore, it was recorded in their name in revenue records. Mutual partition of aforesaid land was done between them and in that partition 0.29 decimel had fallen in the share of Sonauram and remaining portion of the land had fallen in the share of defendant No.1 Samaylal. Plaintiff has wrongly pleaded 5 FA No. 152 of 2022 that Sonauram was absolute owner of Khasra No.2164/2 area 0.234 hectare. It is further averred by the defendants that defendant No.1 has not nurtured or looked after plaintiff after death of his father, rather, he was nurtured by his maternal uncle (mama). It is next averred by defendants that though plaintiff was minor, but, he has sold suit land to defendant No.2 vide registered sale deed dated 12.11.2014 through his guardian defendant No.1 Samaylal and suit land has been recorded in the name of Smt. Bindumati, who was mother of defendant No.1 and grandmother of plaintiff. After death of defendant No.2 Smt. Bindumati, her LRs are in possession of suit land, despite that, without seeking possession of suit land, plaintiff has filed instant civil suit, therefore, it is liable to be rejected. It has further been averred that Smt. Rajkumari has filed instant civil suit on the strength of power of attorney executed by plaintiff in her favour, but, she has no right to file instant civil suit. Since plaintiff has sold the suit land vide registered sale deed and he is also not in possession of the same, therefore, civil suit is liable to be rejected.

5. Defendant No.2(d) has filed separate written statement in which he has admitted that land bearing khasra No.2164/2 rakba 0.234 hectare had fallen in the share of Sonauram in family partition and after his death, plaintiff obtained title and possession over it. It is further averred that taking undue advantage of minority and disability of plaintiff, defendant No.1 Samaylal has got registered sale deed of suit land. This defendant has supported the case of plaintiff.

6. Defendant No.1 and 3 have not filed their written statement, and they remained absent, therefore, they have been declared ex-parte. 6 FA No. 152 of 2022

7. On the basis of pleading of both the parties, the trial Court has framed as many as 6 issues, which are reproduced as under:- 01 02 03 04 okn iz’u D;k xzke glkSn i-g-ua- & 29] rglhy tStSiqj] ftyk tkatxhj&pkaik fu"d"kZ izekf.kr fLFkr dqf"k Hkwfe [kljk ua- &2164@2 jdck 0-234 gsDVs;j esa ls jdck 0-117 gsDVs;j oknh dh iSr`d lEifRr gS \ D;k xzke glkSn’ i-g-ua- & 29] rglhy tStSiqj] ftyk tkatxhj&pkaik izekf.kr fLFkr dqf"k Hkwfe [kljk ua- &2164@2 jdck 0-234 gsDVs;j esa ls jdck 0-117 gsDVs;j ds laca/k esa LoRo dh ?kks"k.kk dh vkKfIr izkIr djus dk vf/kdkjh gSS \ D;k] izfroknh dz-%1 }kjk izfroknh dz-&2 ds i{k esa oknHkwfe ds laca/k esa izekf.kr fu"ikfnr fodz; i= fnukad 12@11@2014] fcuk izfrQy izkIr fd, rFkk fn[kkoVh gksus ls ’kwU;or~ ?kksf"kr fd, tkus ;ksX; gS \ D;k oknh xzke glkSn] i-g-ua-&29] rglhy tStSiqj] ftyk tkatxhj&pkaik izekf.kr fLFkr dqf"k Hkwfe [kljk ua-&2164@2 jdck 0-234 gsDVs;j esa ls jdck 0-117 gsDVs;j ds laca/k esa izfroknhx.k ds fo#) LFkk;h fu"ks/kkKk izkIr djus dk vf/kdkjh gS \ Lkgk;rk ,o O;; \ 05 06 D;k oknh ds }kjk mfpr U;k;’kqYd vnk fd;k x;k gS \ df.Mdk 33 esa of.kZr vuqlkj izekf.kr

8. Learned counsel for the appellants /defendants submits that instant civil suit has been filed by plaintiff for declaration of his title over suit land and cancellation of registered sale deed dated 12.11.2014 (Ex.P1) without seeking possession of the suit land as plaintiff’s witness, who is power of attorney holder and sister of plaintiff herself has admitted in her cross-examination that defendants are in possession over the suit land and plaintiff is not in possession of the same, but, no relief for possession has been sought for by the plaintiff, 7 FA No. 152 of 2022 therefore, simplicitor civil suit filed by plaintiff for declaration of his title is not maintainable as per the Proviso of Section 34 of the Specific Relief Act, 1963. In this regard, he relied upon the judgment rendered by the Hon’ble Supreme Court in the matter of Vasantha (Dead) Through Legal Representatives Vs. Rajalakshmi Alias Rajam (Dead) Through Legal Representatives reported in {(2024) 5 SCC 282}.

9. Learned counsel for appellants further submits that it is the case of plaintiff that while execution of registered sale deed Ex.P-1, he was minor, therefore, defendant No.1 (elder brother of plaintiff’s father) has executed registered sale deed on behalf of plaintiff mentioning himself to be his guardian, but, no document like birth certificate, school record, etc, has been filed by plaintiff to substantiate aforesaid fact. Issue with regard to aforesaid fact, as to whether plaintiff was minor, at that time, has also not been framed by learned trial Court and without framing issues, parties have been deprived of adducing evidence in this regard, therefore, finding recorded by the trial Court that while execution of registered sale deed, plaintiff was minor cannot be relied upon. In this regard, he relied upon the judgment rendered by the Hon’ble Supreme Court in the case of Bacchaj Nahar vs. Nilima Mandal and Another reported in {(2008) 17 SCC 491}. He next submits that plaintiff has filed instant civil suit through special power of attorney (Ex. P-8) given by him to his sister Smt. Rajkumari. Plaintiff has not entered into witness box to substantiate his pleadings, rather, his sister Smt. Rajkumari has recorded her deposition to prove the pleadings, but, it is settled law that power of attorney holder cannot depose in place of 8 FA No. 152 of 2022 plaintiff. Thus, in absence of deposition of plaintiff, decree granted by the learned trial Court, in his favour is not sustainable. In this regard he placed reliance upon the judgment rendered by the Hon’ble Supreme Court in the matter of Manisha Mahendra Gala And Others Vs. Shalini Bhagwan Avatramani And Others with Manisha Mahendra Gala And Others Vs. Shalini Bhagwan Avatramani And Others reported in {(2024) 6 SCC 130}. Learned counsel lastly submits that plaintiff has sold suit land vide registered sale deed and has sought relief for declaration of his title without seeking possession, despite that learned trial Court has granted decree in his favour, which suffers from perversity and illegality, hence, he prays that appeal may be allowed, impugned judgment & decree be set-aside and civil suit filed by plaintiff may be dismissed.

10. Per contra, learned counsel appearing for respondent No.1/ plaintiff submits that father and mother of plaintiff had died prior to year 2005 and at that time plaintiff was minor. He further submits that plaintiff is handicapped since about 7-8 years and his health was being deteriorated day by day, his parents died and elder sister of plaintiff has got married, defendant No.1 Samaylal looked after, him. He further submits that in family partition, suit land had fallen in share of father of plaintiff, therefore, it was recorded in the name of minor plaintiff in revenue record after death of his father. In the year 2014, when registered sale deed Ex.P1 was executed by defendant No.1, at that time also, plaintiff was minor aged about 14-15 years, despite that, defendant No. 1 executed registered sale deed of minor plaintiff’s suit 9 FA No. 152 of 2022 land without seeking permission of the Court as provided under Section 8(2) of the Hindu Minority & Guardianship Act, 1956 (for short ‘the Act, 1956’) that too, in favour of his own mother, who ws grandmother of plaintiff only to deprive plaintiff from suit land whereas there is fiduciary relation between plaintiff, defendant No.1 (seller) and original defendant No.2 Smt. Bindumati (purchaser). He next submits that no amount was paid to the plaintiff from alleged sale consideration, rather, since sale deed was executed by defendant No.1 in name of his mother Smt. Bindumati (defendant No.2) which itself shows that it was executed without receiving any sale consideration only to cause loss to the plaintiff and also to take undue advantage of fiduciary relation. He further submits that plaintiff is still in possession of the suit land and since factious sale deed, without payment of sale consideration has been got executed, also ignoring the legal provisions of the Act, 1956, therefore, it does not confer any right or title to defendant No. 2 or her legal heirs (purchaser). Even if, for the sake of argument, plaintiff is not in possession of the suit land, despite that, since sale deed Ex.P1 is void ab-initio, therefore, it cannot transfer possession of suit land to Bindumati (purchaser). Thus, since plaintiff is still in possession on it, therefore, he has not sought releif of possession of the suit land, therefore, civil suit filed by plaintiff does not suffer from the proviso of Section 34 of the Specific Reliefs Act, 1963. He next submits that the judgment passed by the trial Court does not suffer from any perversity or illegality, hence, instant appeal is liable to be dismissed.

11. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the 10 FA No. 152 of 2022 records with utmost circumspection.

12. As per pleading and deposition of Rajkumari Shrivas (PW-1), who is elder sister and holder of special power of attorney of plaintiff, suit land was received to his father – Late Sonauram Shrivas in partition, who possessed and cultivated it in his life time and after his death, it was possessed and cultivated by the plainitff through defendant No. 1 – Samaylal Shrivas. This fact is also supported by Chelaram (PW-2), who is resident of village of plaintiff. No substantive facts has been brought in cross-examination to elicit aforesaid fact.

13. Undisputedly, defendant No. 1 – Samaylal Shrivas (elder brother of father of plaintiff) has sold suit land vide registered sale-deed {Ex.P- 1 (certified copy)}, which has also been filed & exhibited by defendants as Ex.D-1. Revenue documents i.e. Kist Bandi Khatouni & Khasra Panchshala of the year 2014-15 is also annexed with the certified copy of registered sale-deed dated 12/14-11-2014 (Ex.P-1), which shows that land bearing Khasra No. 2164 /2, area 0.234 hectare (area 0.117 hectare of which, is suit land of instant case) is recorded in the name of minor plaintiff – Khagendra Kumar Shrivas @ Khagesh Kumar. Though Plaintiff has not filed copy of revenue documents of suit land prior to 2014-2015 before the trial Court, but he has filed certified copy of Khasra Panhshala and Kist Bandi Khatouni (Exs. P-4 & P-5), respectively and have also filed certified copy (Ex.P-2) of order of Sub Divisional Officer (Revenue), Shakti, District Janjgir-Champa dated

13.07.2016 passed in Revenue Case No. 55 /v-6/15-16 whereby appeal filed by plaintiff and his sister – Rajkumari was allowed by 11 FA No. 152 of 2022 S.D.O. (Revenue), Shakti and mutation order passed by Subordinate Revenue Authority entering name of defendant No. 1- Samaylal as guardian of minor plaintiff – Khagendra Kumar Shrivas in revenue record, has been set aside.

14. Defendants have examined only defendant No. 2(c)- Dashrath Shrivas as their witness, who has deposed that the land bearing Khasra No. 2164 was recorded in the name of Sonauram (father of plaintiff) and Samaylal (defendant No.1), which was divided between them and in that partition, 0.29 dismal land was fallen in share of Sonauram and remaining portion was fallen in share of defendant No. 1 – Samaylal Shriwas, but in support thereof, neither defendants have examined any other witness nor have filed any document. Rather, the fact as has been stated earlier that the suit land was possessed and cultivated by father of plaintiff in his life time and after his death, it was possessed & cultivated by the father of plaintiff, has got support from PW-2 and revenue documents annexed with the certified copy of registered sale deed (Ex.P-1). Even contents of that sale-deed, which was got executed by defendant No.1 on behalf of plaintiff also shows that the land bearing Khasra No. 2164/2, area 0.234 hectare was owned and possessed alone by minor plaintiff – Khagendra Kumar Shrivas @ Khagesh Kumar. If it would have jointly owned by Sonauram Shrivas (father of plaintiff) and defendant No. 1 – Samayelal, then it would not have reduced in writing in sale-deed (Ex. P-1), which was got executed by defendant No. 1 himself that suit land was exclusively owned by minor plaintiff. 12 FA No. 152 of 2022

15. Having considered aforesaid facts & circumstances of the case and oral & documentary evidence available on record, it is found that learned trial Court has not erred in law in holding that suit land is parental/ancestral property of plaintiff, as the plaintiff has obtained the same from his father late Sonauram Shrivas, who received the same in partition.

16. From the pleading as well as evidence of both the parties, it is proved that when father of plaintiff had died, at that time, plaintiff was minor. Though, no documentary evidence has been filed by the plaintiff in this regard, but it has not been denied by defendants No. 2(a), 2(b), 2(c) and (e) in their pleading. It has also been admitted by them in their pleading as well as Dashrath Shriwas (DW-1) in his deposition that while execution of registered sale deed (Ex.P-1) of suit land, plaintiff – Khagendra Kumar Shriwas was minor and, therefore, the suit land was sold by defendant No. 2 – Samaylal showing himself to be guardian of minor plaintiff – Khagendra. This fact also get support from certified copy of sale-deed {Ex.P-1 / Ex.D-1} dated 12/14- 11-2014, in which, name of plaintiff – Khagendra Kumar has been mentioned as minor and name of defendant No. 1 – Samaylal Shriwas (who is brother of father of plaintiff) has been mentioned as his ‘guardian’.

17. As per Section 6 of The Hindu Minority and Guardianship Act, 1956 (henceforth, Act, 1956 ) father and mother happened to be the natural guardian for their children and unmarried daughter. Section 8(2) & (3) of the Act, 1956 contemplates that natural guardian has no 13 FA No. 152 of 2022 right to transfer, sale, gift, exchange or otherwise, immovable property of minor without previous permission of the Court and contravention of the same made that transaction voidable at the instance of minor or any person claiming under him.

18. Section 7 of the Guardian and Wards Act, 1890 (henceforth, “Act, 1890”) contemplates provisions for appointing a guardian of a minor or his property or both. Such a guardian can be appointed by the Court. Section 29 of the Act, 1890 also provides similar provision as of Section 8 (2) & (3) of the Act, 1956, that guardian appointed under the Act, 1890 shall not transfer immovable property of his ward (minor) by sell, gift, exchange or otherwise without permission of the Court.

19. Father and mother of plaintiff had died prior to 2005. Smt. Rajkumari Shriwas, who is power of attorney holder of plaintiff, is his elder sister. Defendant No. 1 – Samaylal Shriwas is elder brother of Sonauram (father of plaintiff). Thus, defendant No. 1 – Samaylal Shriwas was neither a natural guardian of minor plaintiff – Khagendra Kumar nor his guardian appointed by the Court, while execution of registered sale deed (Ex.P-1).

20. In instant case, undisputedly while execution of registered sale deed (Ex.P-1), plaintiff was minor and defendant No. 1 – Samaylal Shriwas, who executed that sale deed declaring himself to be ‘guardian’ of minor plaintiff, thus, registered sale deed was neither executed by natural guardian of plaintiff as provided under the Act, 1956 nor his guardian as provided under the Act, 1890. Therefore, defendant No. 1 – Samaylal has no right at all to execute registered 14 FA No. 152 of 2022 sale deed in respect of suit property, owned by minor plaintiff, but the same has been executed illegally by him, therefore, it does not confer any right whatsoever to the vendee / purchaser of the same and that sale deed is illegal, as it has been it has been executed by defendant No.1 – Samaylal without any authority.

21. It was contended by learned counsel for the plaintiff that no issue has been farmed by the trial Court with regard to the fact that while execution of registered sale-deed (Ex.P-1), plaintiff was minor, therefore, finding recorded by trial Court that, at that time, plaintiff was minor cannot be relied upon. But, this contention is not sustainable, because as per order 14 Rule 1 (1) of the CPC, issue arises when a material proposition of fact or law is affirmed by the one party and denied by the other. The plaintiff has pleaded aforesaid facts in his pleading, he has also pleaded that sale deed has been executed by defendant No. 1 without permission of the competent authority. Defendants have also admitted in their pleading as well as in their deposition that while execution of registered sale deed, plaintiff was minor and sale deed has been executed by defendant No. 1 as his ‘guardian’. Thus, since aforesaid fact (s) has not been denied by the defendants in their pleadings, therefore, non-framing of issue by the trial Court on said point / fact does not entitle the defendants to be taken aforesaid fact in their favour, therefore, case law of Bacchaj Nahar (supra) cited by counsel for the appellant is not helpful to him in the instant case. 15 FA No. 152 of 2022

22. Undisputedly, defendant No. 2 – Smt. Bindumati Shrivas (Now dead) was mother of defendant No. 1 – Samaylal and grandmother of minor plaintiff – Khagendra Kumar Shriwas, thus, there was fiduciary relation between them, despite that registered sale deed (Ex.P-1) has been got executed by defendant No.1 in the name of his own mother – Smt. Bindumati Shrivas. Therefore, it was incumbent upon defendant No. 1 and defendant No. 2 to prove that aforesaid sale was not made without taking any unfair advantage againt minor plainitff, in view of provisions of Section 16 of the Indian Contract Act, 1872.

23. As has been discussed in the preceding paragraphs that defendant No. 1 was neither natural guardian of minor plaintiff nor guardian appointed by the Court, therefore, he has no right at all to sell the suit property of plaintiff, which was sold vide registered sale-deed for sale consideration of Rs.10,00,000/-, but it has not been proved by defendant No.1 and defendant No. 2 that said sale consideration was given to the minor plaintiff or it was spent for his need.

24. Though, plaintiff – Khagendra Kumar Shriwas has not entered into witness box to substantiate aforesaid facts, but when sale-deed (Ex.P-1) has been executed by defendant No. 1- Samaylal, therefore, he was duty bound to prove contents of aforesaid sale deeds that it was valid in all respects, but he (defendant No.1) remained ex parte and even has not filed written statement, therefore, not giving statement by plaintiff to prove illegality of registered sale deed (Ex.P-1) will not validate aforesaid sale deed. It has also not been proved by defendants that sale-deed (Ex.P-1) was executed in the benefit of 16 FA No. 152 of 2022 plaintiff and sale consideration was spent for his need or paid to him, rather, it was got executed under undue influence, as contemplated under Section 16 of the Act, 1872, therefore, it can be held that sale deed was executed not against the provisions of law, rather it has also been executed without payment of sale consideration and without any benefit of minor plaintiff. Whereas, in the case of Kewal Krishan Vs. Rajesh Kumar and others reported in 2020 (18) SCC 489, Supreme Court has held that, sale of an immovable property would have to be for price and such payment of price is essential, even if it is payable in the future. If sale deed is executed without the payment of price, it is not a sale at all in the eyes of law, specifically under Section 54 of the Transfer of Property Act, 1882. Such a sale without consideration would be void and would not affect the transfer of immovable property.

25. Thus, since sale deed of suit land of minor plaintiff was executed by defendant No. 1 without authority and it has also not been proved that sale was made for need of the plaintiff, there was also fiduciary relation between minor plaintiff and his alleged guardian – Samaylal (defendant No. 1) and defendant No. 2 – Late Smt. Bindumati (purchaser, in such a situation, it cannot be held that sale consideration was paid by vendee late Smt. Bindumati for purchase of suit land, therefore, it is proved that, the sale deed (Ex.P-1) is not only factious but also, void ab initio.

26. In view of above discussion, in the considered opinion of this Court, the finding recorded by the learned trial Court that the sale deed (Ex.P-1) dated 12/14-11-2014 is fictitious, based on the evidence 17 FA No. 152 of 2022 available on record, is found to be correct and the same is hereby affirmed.

27. Though, Rajkumari Shrivas, who is elder sister (PW-1) and power of attorney holder of plaintiff, has admitted in paragraph 18 of her cross-examination that after execution of registered sale deed (Ex.P-1), original defendant No. 2 and after her death, her legal heirs i.e. defendants No. 2(a) to 2(e) are having possession on the suit land, whereas, in the examination-in-chief, she has specifically averred that the plaintiff is still in possession over the suit property. This fact has also been supported by Chelaram (DW-2), who is resident of plaintiff’s village, though he has admitted that he does not know the fore-corner of suit land, but he has denied the suggestion that he has not seen the suit land. Rajkumari Shrivas (PW-1) has not been asked that she has ever seen the plaintiff cultivating the suit land. Since she is married lady, not supposed to be indulged in agriculture. therefore, merely because of her aforesaid admission in paragraph 18 of her cross- examination, it cannot be held proved that suit land is possessed by defendant No. 2 – Bindumati (vendee) and after her death, her legal heris are in in possession over the same. Aforesaid facts also cannot be relied upon because sale deed (Ex.P-1) executed by defendant No. 1 – Samaylal is void ab initio for the reasons mentioned in preceding paragraphs, therefore, it does not confer any right to the vendee purchaser and, therefore, on the basis of preponderance of probability, it is found proved that plaintiff is in possession over the suit land, as he has been pleaded also. In view of above, proviso to Section 34 of The Specific Relief Act, 1963 (henceforth, ‘Act, 1963’) did 18 FA No. 152 of 2022 not come into play in debarring the suit filed by plaintiff. Thus, case law of Vasantha (supra) cited by counsel for the appellant/defendants in this regard is also not helpful to them in the facts situation of the instant case.

28. Respondent No. 1/plaintiff has filed instant civil suit through special power of attorney holder (Ex.P-8) Smt. Rajkumari, who is his elder sister. The plaintiff has not examined himself, rather his special power of attorney holder i.e. Rajkumari Shrivas has examined herself.

29. It is settled law that Power of Attorney holder can only depose about the fact of his personal knowledge. He cannot depose about those facts, which are not in his personal knowledge or personal knowledge of the person, who he represents.

30. In the matter of Manisha Mahendra Gala and others (supra), their Lordships of the Supreme Court have held that power of attorney can depose and verify on oath before court but he must have witnessed transaction as an agent and must have due knowledge about it. Considering the scope of reliability of deposition of the person, who has deposed on the basis of power of attorney executed by him, after considering various judgments, have held as under :- “28. The law as understood earlier was that a General Power of Attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo 19 FA No. 152 of 2022 Bhojwani v. Indusind Bank Limited 1 , this Court held that the Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence. However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani (supra) in A.C. Narayanan v. State of Maharashtra 2 concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani (supra) and clarified that Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting 1 2 (2005) 2 SCC 217 (2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343 20 FA No. 152 of 2022 such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.

29. It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene……………”

31. In the case in hand, though it has not been deposed by Rajkumari Shrivas that she is witness of registered sale-deed (Ex.P-1), but she is real sister and Special Power of Attorney of plaintiff. Suit land of minor plaintiff has been sold by defendant No. 1 without any authority of law, without payment of sale consideration to the minor plaintiff or his need, despite having fiduciary relation with the minor plaintiff as well as vendee, who is mother of defendant No. 1 and grandmother of minor plaintiff. Certified copy of sale deed (Ex.D-1) has also been filed by defendants. That transaction has also been supported by them in their pleading and deposition of defendant No. 2 (c) – Dashrath Shrivas. Therefore, liability of proving the validity of sale- deed was upon defendant No. 1 -Samaylal, who sold the suit land showing himself to be ‘guardian’ of minor plaintiff and defendant No. 2 – late Smt. Bindumati, who was grandmother of plaintiff and mother of defendant No. 1, therefore, the plaintiff's failure to examine himself would have no adverse effect on his case, as his sister being 21 FA No. 152 of 2022 special power of attorney holder can file and maintain civil suit on behalf of her brother (plaintiff). Hence, contention raised by learned counsel for the appellants in this regard is not found to be sustainable.

32. In view of foregoing discussion, the first appeal, being devoid of substance, is liable to be and is hereby dismissed. No cost (s).

33. A decree be drawn-up accordingly. Sd/- (Naresh Kumar Chandravanshi) JUDGE AMIT KUMAR DUBEY KUMAR DUBEY