MOOL CHAND MEENA Vs. JAGDISH

JUDGEMENT

(1.) This appeal is directed against the judgment of the learned Additional District Judge (Fast Track) No. 2, Jaipur District, Jaipur dated 2.3.2009 by which the application filed by the plaintiff-appellant for temporary injunction in a suit for cancellation of sale-deed and declaration of perpetual injunction has been dismissed. Learned counsel for the appellant has argued that the learned trial Court has erred in law in holding that the plaintiff has no prima-facie case in his favour. It was argued that finding to the effect that the power of attorney was executed for limited duration of three years and that power of attorney holder had no right or power to execute the sale deed in favour of the plaintiff is wholly perverse and erroneous. Learned counsel cited the judgment of Madras High Court in Ramanathan Chetty vs. Kasi & Ors.,1917 AIR(Mad) 455 and argued that in that case it was held that where the duration of an agency is fixed for a term certain by agreement between the principal and agent and the latter is allowed to continue as agent even afterwards, the agency is not terminated on the expiry of the term nor is a fresh agency created but the original agency continues. Learned counsel also cited the judgment of Division Bench of this Court in Basant Nahata vs. The State of Rajasthan & Ors., 2000 4 RajLW 186 and argued that Section 22A inserted by way of amendment vide Registration (Rajasthan Amendment) Act, 1976 was held to be ultravires and unconstitutional. In that case, learned counsel has argued that registration of power of attorney shall be valid for three years. Learned counsel also cited the judgment of Supreme Court in State of Rajasthan & Ors. vs. Basant Nahata, 2005 AIR(SC) 3401 and argued that the aforesaid division bench judgment has been upheld by the Supreme Court. It was also argued that the impugned order is bad in law because that would virtually decide the suit itself because the learned trial Court has given a finding that the power of attorney itself ceased to exist.

(2.) Upon hearing the learned counsel for the appellant and perusing the impugned judgment and the finding recorded by the trial Court on the question of prima-facie case, I find that the power of attorney in the present case was registered on 28.10.2002, which remained valid for duration of three years, which period came to an end on 28.10.2005. Admittedly, the sale-deed made in favour of the plaintiff-appellant by the power of attorney holder was executed on 3.10.2006 i.e. near after the expiry of the power of attorney. Contention that on the continuation of the term, power of attorney deemed to have been continued, cannot be accepted. In the present case, stipulation was inserted in the power of attorney that duration will be for a period of three years and beyond that duration, original owner i.e. defendant respondent No. 1 had sold it to defendant respondent No. 2, therefore, learned trial Court was justified in not finding any prima-facie case in favour of the plaintiff. Ratio of the judgment of this Court in Basant Nahata supra as approved by the Supreme Court in the judgment cited supra, cannot possibly be applied to the facts of this case. In that case, the notification issued by the government in exercise of its power under Section 22A of the Registration (Rajasthan Amendment) Act, 1976 dated 26.3.1999 as amended by another notification dated 22.4.1999 provided that a power of attorney conferring power of sale or transfer of property by any other mode, if any, the property situated outside the District where the power of attorney is presented for registration and if executed in favour of any person other than brother, sister, son, daughter, father, mother, husband and wife, have been declared as documents opposed to public policy under Section 22-A. The notification dated 26.3.1999 also provided that any power of attorney authorizing the attorney to transfer any immovable property for a term in excess of six months or irrevocable or where the term is not mentioned, would also be opposed to the public policy. It was in that context that the constitutional validity of Section 22A of the Act of 1976 was called in question before this Court and was also held to be violative of Article 14 of the Constitution of India. That judgment of Supreme Court may not be of any help to the plaintiff-appellant. In the present case, power of attorney itself contained stipulation to the effect that it shall remain valid for three years and after expiry of three years, the document has no relation to the object to be achieved and, therefore, is void and unreasonable. Contention that it has to be specifically revoked cannot be accepted because such a necessity would not arise in a situation such like this. Power of attorney would come to an end on expiry of period of three years and for that purpose, a separate revocation may not be necessary. Contention that the learned trial Court was not justified in holding that power of attorney has ceased to be valid, and therefore, its observation is uncalled for, also cannot be accepted because while streamlining the argument on the prima-facie case of either party, if argument about enforceability of the power of attorney is made, trial Court has to necessarily deal with such an argument either accepting or rejecting the argument and has to give a finding in either way as so held even by this Court.

(3.) I, therefore, do not find any infirmity in the impugned order. The appeal is accordingly dismissed.