Power of Attorney Act, 1882
Sections 1A & 2—Unauthorised sale by agent—General power of attorney executed by Principal authorizing the agent to sign all documents and present them for registration—Deed did not contain a clause authorizing agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent—Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale—Ordinarily a power of attorney is to be construed strictly by the Court—Neither Ramanatha Aiyar’s Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney.
[Para 17]
Partition
Failure to challenge alienations—Effect—It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations—There are several reasons behind this principle—One is that the alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer—It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner—High Court was wrong in putting against the appellant, her failure to challenge the alienations.
[Para 15]
Transfer of Property Act, 1882
Sections 3 & 41—Competency to transfer property—General Power of Attorney executed by appellant in favour of her sister, authorized the agent to sign all documents and present them for registration—Appellant’s sister was found to have executed four different documents in favour of certain third parties, assigning/releasing some properties—If the respondent had exercised reasonable care as required by the proviso to Section 41 of the TP Act, they could have easily found out that there was no power of sale—Unfortunately after finding (i) that the power of attorney did not contain authorization to sell; and (ii) that the respondent cannot claim the benefit of Section 41 of the Act, the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Act—No one can confer a better title than what he himself has (nemo dat quod non habet)—Appellant’s sister did not have power to sell the property to the vendors of respondent—Vendors of respondent could not have derived any valid title to the property—If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.
[Paras 11, 12 & 19]