BHAGWANI Vs. CHHAJU RAM

JUDGEMENT

(1.) THIS second appeal is against the judgment and decree of the learned trial Judge dated 21st July, 2012 and the appellate court decree dated 23rd September, 2014 affirming the decree of the learned trial Judge in a suit for specific performance of an agreement to sell dated 28th May, 2005 with respect to the suit corpus.

(2.) THE plaintiff and defendant Ramesh Chand are alleged to have executed an agreement to sell the property for sale consideration of Rs. 2.13 lacs. The plaintiff alleged that an amount of Rs. 1.25 lacs was received in cash as earnest money by the power of attorney holder of the defendant Ramesh Chand and possession of the property was delivered to the plaintiff at the spot and the date for registration of the sale deed was settled to be convened on 27th May, 2006, on which date, the balance amount of Rs. 88,000/ - was contracted to be paid to the defendant. The deal did not materialize when seller backed out of the deal.

(3.) ON summons issued by the trial Court, the defendant appeared and filed a written statement contesting the case and taking the objection that she had never executed a general power of attorney in favour of her nephew Ramesh Chand to alienate her property but was only authorized Ramesh Chand to manage the suit property. Ramesh Chand had fraudulently got a general power of attorney executed in his favour on the basis of which document he executed an agreement to sell with the plaintiff which is not binding on her. When she came to know of the fraudulent act she cancelled the power of attorney on 19th March, 2007 by executing a cancellation deed before the office of the Sub -Registrar exercising jurisdiction. It is not disputed that the alleged sale agreement was unregistered and if possession passed, such passing was unlawful and created no right to possession without payment of stamp duty. All she conceded was that she intended to give special power of attorney to Ramesh Chand to look after her property affairs but he took advantage of her illiteracy and manufactured a general power of attorney with right to alienation of the defendant's property. Rather interestingly, Ramesh Chand had in fact transferred the property in the name of the defendant's sons without her consent, knowledge and without passing of any valuable consideration to the owner to cause her wrongful loss.