- • The court was managing a situation where the plaintiff (Respondent here) filed suit for possession by ejectment of the defendant from his shop, on the ground that defendant's tenancy has been terminated.
- • On the other hand, the defendant (i.e., Prakash Devi) claimed ownership of the property. It was stated that Plaintiff's father BishamberDass executed a registered General Power of Attorney based on which Diwan Chand Chowdhary (defendant's husband) transferred the property in favour of Appellant.
- • The trial Court while dismissing the suit had recorded that on the demise of BishamberDass, the General Power of Attorney stopped being in force and subsequently, the sale deed executed is without the enabling power, consequently, Smt. Prakash Devi did not become the owner of the property. This was also maintained by the First Appellate Court.
- • The question in second appeal was when and where the agent has an interest in the subject matter, then whether, on the demise of the principal, the agency created by executing General Power of Attorney in relation to the immovable property along with the agreement to sell, the Special Power of Attorney, the Will, the affidavit and the other Power of Attorney will cease to be viable?
- • The High Court relied on Maharani Shanta Devi (her highness) Vs. Shavjibhai H. Patel and others, 1998(4) and discussed the effect of the passing of the principal while deciphering that the demise of the principal cannot bring about the termination of the agency.
- • In addition, the court noted that according to Section 85 of the Indian Evidence Act, 1872 the Court is bound to draw a presumption of authentication in favour of the power of attorney holder although it may be disproved by the other party by leading evidence.
- • Section 114 [illustration (e)] of the Indian Evidence Act, 1872, accommodates for the assumption regarding regularity of procedure before a registration officer and that all the judicial and official acts by the Registrar have been routinely performed.
- • Additionally, the Court held that the General Power of Attorney and Special Power of Attorney do not require attestation by witnesses.
- • As far as the facts and circumstances of the current case are concerned, the court noticed that the defendant has released her primary onus by producing the documents and examining the witnesses and the onus rests on the plaintiff to prove that late Sh. Bishamber Dass never executed these documents.
- • In relation to the contention of the learned counsel representing the respondent that the agreement to sell was obligatorily registrable under Section 17(b) and (c) of the Indian Registration Act, 1908, the court held that this section is not relevant to an agreement to sell.
- • Keeping in view the aforesaid discussion, the court permitted the appeal and the judgments and decrees which were passed by both the Courts below were set aside.
- • Hence, the bench which comprised Justice Anil Kshetarpal observed, that as per illustration (b) of Section 202 of the Indian Contract Act, 1872, an agency in which the agent has a matter of interest is neither terminated by insanity nor by the death of the principal.
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