Uncategorized

SALE BY POA Holder – POA TO BE PROVED

COMMENT : In this case a woman’s relations with her husband soured – her property was sold by her husband to his sister purporting to act on behalf of and as his wife’s power of attorney. The Husband or the transferee failed to produce POA. Court gave injunction to the wife restraining disturbance to her possession. 
Mrs. Vanita Mukesh Simaria vs Smt. Neelima Dhiraj Lavana on 7 March, 2012 (Bom HC)
JUDGMENT

1. The parties are sisters-in-law. The petitioner in the Writ Petition and the Appellant in Appeal was the defendant in the original Suit. The respondent in the Writ Petition and Appeal was the original plaintiff.

2. The plaintiff sued for an order against the disturbance of her possession in the suit premises and against the creation of third party rights in the suit premises by the defendants.

3. It is the case of the plaintiff that she owned and possessed one property which was ground floor of a row house. One Dhiraj, who is stated to be husband and who shall be so referred to hereinafter, owned and possessed the first floor of that row house. The parties were married and lived in Abu Dhabi where she carried her business and the husband looked after the financial affairs of the business. She came to India twice or thrice when she lived in the suit property and had kept it locked whilst she was in Abu Dhabi. The relations between the parties were strained and the plaintiff came to India in 2009. She lived in the suit premises whilst in India. She also lived in Abu Dhabi whilst she went there for her business. Since a party can live at more than one place and own and possess more than one property that aspect is not material. What is material is that the plaintiff owned the suit property.

4. The defendant claims to have purchased the suit property upon consideration of Rs. 19.85 lac from the husband of the plaintiff as her constituted attorney. On 17.01.2000 an assignment on that behalf was entered into and was registered. Though the assignment showed that it was executed by and on behalf of vendor by her power of attorney holder, a copy of the power of attorney was not annexed to the assignment. The plaintiff has claimed that there was no such power of attorney executed by her and after her relation was strained with her husband. He fraudulently entered into an agreement with her sister. The defence under which the defendant claimed to have purchased the portion of the row house belonging to the plaintiff for consideration.

5. The plaintiff learnt about this aspect in 2010 whilst she was at the suit premises and when she saw an electricity bill in the name of the defendant for the ground floor of the suit premises. When she returned to Abu Dhabi she searched the record in her house and came upon the copy of the agreement and realized how the transaction had materialized. She, therefore, sued the defendant and obtained an ex parte order restraining her from disturbing the plaintiff’s possession and creating third party rights in the suit property.

6. It is contended on behalf of the defendant that she has come into possession of the suit property as an owner upon she having executed a document with the constituted attorney of the then owner. She has produced certain documents showing her possession thereafter until the time of the suit. These documents are a receipt for Rs.23500/- dated 25.10.2008 executed by the builders from whom the plaintiff herself had purchased the suit premises initially, a letter of the society showing no objection for the sale of the suit flat dated 15.01.2000, an electricity bill of June, 2009 and a notarized affidavit of her brother, the plaintiff’s husband, reciting the fact of sale. The defendant has not produced the power of attorney. She must be taken to have seen and accepted the power of attorney as she executed the document with the constituted attorney of the vendor. She obtained NOC of the society 2 days before the transaction and has produced one receipt of the bill 8 years after the transaction. She has produced no electricity bill showing in the possession of the suit premises for 9 years after the transaction and one and only bill of June, 2009. Counsel on behalf of the plaintiff stated to Court that the earlier electricity bills are in the name of the plaintiff even after the execution of the transaction.

7. It is an admitted fact that the plaintiff was the owner. It is not admitted that she had any constituted attorney to act for her. The defendant relies upon the transaction executed by the constituted attorney. The defendant must, therefore, show valid power and authority in such attorney to execute the transaction. Counsel on behalf of the defendant stated that she does not have the power of attorney because that would be with the power holder himself. However what is material is that she does not have a copy of that power of attorney. The seminal document upon which the plaintiff has based her case of fraud and upon which the defendant has based her case of purchase and possession is, therefore, at large.

8. The consideration which is stated to have been paid by the defendant is shown to have been from the amounts which the husband of the plaintiff is stated to have transferred from the bank account of the plaintiff into his account and which ultimately was credited to another account shown to be newly opened in the name of the plaintiff. The plaintiff is not the recipient of the amount in that account.

9. The learned Judge has considered these aspects including the rotation of finance. He has also considered an amount of Rs.2138649.34 which was given by the defendant’s brother to her. He has considered the absence of the copy of the power of attorney with the sale deed produced by neither of the parties and observed that the plaintiff was not expected to produce it. The defendant relies upon precisely the power of attorney in support of her claim. She is required to produce it from her own custody or from the custody of any other person who has it. Non production of that document by the defendant must, therefore, be fatal to her case.

10. Possession follows legal title. Title of the plaintiff is not denied. The plaintiff may be living at more than one place. However possession in her own property is presumed unless contrary is shown. That is sought to be shown only by the NOC of the society, the receipt of the builder and one electricity bill. The juridical and lawful possession of the defendant upon the transfer of the title to her for valid consideration is not shown. The learned Judge has correctly concluded that there is no evidence to show that she was in possession prior to the filing of the suit. The grant of the relief of the injunction sought by the plaintiff is, therefore, proper. The refusal of appointment of Court Receiver at the instance of the defendant or for appointing her an agent of the Court Receiver is also correct. The possession is stated to have been taken by the plaintiff under the guise under the order of injunction. That case has not been substantiated. The reference to the plaintiff’s residence in Abu Dhabi is misconceived as the plaintiff is as much a resident in Abu Dhabi as in India interchangeably. Hence there would be no question of restoration of the possession, which never was, to the defendant.

11. Consequently all the three impugned orders do not suffer from any irregularity and do not deserve to be modified or revised.

12. Both the Writ Petitions and the Appeal from Order are dismissed. Civil Application is disposed of as infructuous.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s