Summary
The plaintiffs claimed title through a 1968 sale deed. In it, a tenant, acting as attorney for the owner who had moved to East Pakistan, sold the land to himself and later conveyed it to his wife. The power of attorney was never produced. The trial and first appellate courts dismissed the title suit, but the Tripura High Court decreed it on the presumption arising from registration. The Judges differed. Shah J. would restore the dismissal: without the power of attorney and proof of compliance with Section 33(1)(c) of the Registration Act, no Section 60 presumption arose, and the plaintiffs' conduct raised doubts. Nagarathna J. would uphold the decree: the deed recited execution before a Komilla Magistrate, its registration raised an unrebutted presumption, and Amar Nath made production unnecessary. The matter was referred to a larger Bench.
Issues
- Whether a title based on a registered sale deed executed by an attorney of a principal residing abroad can be upheld, by a presumption under the Registration Act, where the power of attorney was neither produced nor shown to comply with Section 33(1)(c).
- Whether the High Court in second appeal could set aside concurrent findings that the plaintiffs failed to prove title.
Provisions considered
- Sections 32, 33(1)(c), 34, 58 and 60, Registration Act, 1908Per Shah J., a presumption under Section 60 arises only where the power of attorney is executed as required by Section 32 read with Section 33(1)(c); per Nagarathna J., registration after the officer's enquiry raises a presumption of due execution and authority, rebuttable only by strong evidence. (¶¶ 6, 7, 9, 18, 25, 26, 28)
- Sections 67 and 85, Indian Evidence Act, 1872Per Nagarathna J., the sale deed was proved by proof of the executant's admitted signature, and a power of attorney authenticated by a Magistrate carries a presumption of due execution. (¶¶ 18, 24)
- Section 100, Code of Civil Procedure, 1908Per Shah J., the High Court erred in upsetting concurrent findings of fact in second appeal by drawing an unwarranted presumption. (¶¶ 5, 7, 10)
Held
- Per Shah J., the plaintiffs, seeking declaration of title, had to prove the sale deeds; the power of attorney was not produced, its executant was not examined, and compliance with Section 33(1)(c) was not shown, so the High Court gravely erred in drawing a statutory presumption and reversing concurrent findings. (¶¶ 6, 7, 10)
- Per Shah J., the attorney's conveyance to his wife still as attorney, despite claiming ownership, and the belated attempt to plead that the power of attorney was handed to the first defendant, cast serious doubt on its genuineness; he would allow the appeal and restore the trial court's decree. (¶¶ 8, 9, 11)
- Per Nagarathna J., the recitals in both sale deeds show the power of attorney dated 01.08.1968 was executed before a First Class Magistrate, Komilla, satisfying Section 33(1)(c); following Amar Nath v. Gian Chand, production of the original power of attorney is not essential to prove a sale deed executed under it. (¶¶ 19, 20, 21, 22, 23)
- Per Nagarathna J., the defendants, found to have no title of their own, never rebutted the presumption from registration, the original owner never disputed the power of attorney, and a 1974 order recorded the plaintiff's purchase; she would dismiss the appeal and affirm the decree. (¶¶ 26, 27, 28, 29, 30)
Result
In Civil Appeal No. 2965 of 2022 against the Tripura High Court judgment dated 05.04.2018 in R.S.A. No. 01 of 2005, Shah J. would allow the appeal and restore the dismissal of the suit, while Nagarathna J. would dismiss it; in view of the split verdict the matter was referred to a larger Bench.