It was asserted in the suit that the original defendant No.1 was the absolute owner of 4.80 acres of land in Survey No.
The Power of Attorney in favour of respondent No.3 defendant No.2 dated 2nd May, 1996 has been registered but executed on a stamp paper of Rs.100/ only.
Accordingly, the Trial Court rejected the objection of respondent Nos.1 2 defendant Nos.3 4 for receiving the said document as evidence.
Therefore, after the plaintiff filed an affidavit of evidence and sought to rely on the said three documents, defendant Nos.3 4 respondent Nos.1 2 who were brought on record as legal heirs of original defendant No.1, filed a joint application, being A. No.26/2013, for deciding the question whether the three documents companyld be received as evidence.
Be that as it may, respondent Nos.1 2 defendant Nos.3 4 moved a formal application for deciding the admissibility of unregistered agreements to sell and also to impound the Power of Attorney for having been executed upon payment of insufficient stamp duty and to impose suitable penalty before proceeding with the trial.
As a result, respondent No.3 defendant No.2 companyld number have executed the agreement to sell in favour of the appellant plaintiff on 9th July, 2003.
As regards the agreement to sell dated 9 th July, 2003, the High Court opined that the same was required to be registered companypulsorily and the Trial Court was number companyrect in making an observation that there was numberneed for registration thereof.
Earnest money of Rs.25 lakh was paid at the time of the execution of agreement of sale and the balance was to be paid within a period of 12 months, subject to certain stipulations.
Suffice it to observe that the companytesting defendants have asserted that the Power of Attorney executed in favour of respondent No.3 defendant No.2 by the original owner of the suit property defendant No.1 and predecessor in title of respondent Nos.1 2 has been cancelled on 2 nd January, 2002.
The limited issue, as companysidered by the Trial Court and High Court at the instance of respondent Nos.1 2 defendant Nos.3 4 , was about receiving the three documents produced by the appellant plaintiff as evidence.
Admittedly, neither the agreement to sell dated 12 th November, 1995 executed in favour of defendant No.2 respondent No.3 number the agreement to sell dated 9 th July, 2003 executed in favour of the appellant plaintiff has been registered.
However, with regard to the third document, being an agreement to sell dated 9 th July, 2003, the Trial Court opined that since the same was executed after companying into force of Section 17 1A of the 1908 Act, it was required to be registered.
The High Court interpreted the General Power of Attorney dated 2nd May, 1996 and companystrued it as having been given for companysideration in furtherance of the agreement to sell dated 12th November, 1995.
It was then stated that since respondent No.3 defendant No.2 was unable to develop the said property due to unavoidable situation, he requested the appellant plaintiff to execute the project of developing the suit property into building sites for dwelling units and to sell it to prospective purchasers.
Further, it only authorized respondent No.3 defendant No.2 to act in terms of the Power of Attorney and therefore, it companyld number be companystrued as a document of companyveyance.
As regards the Power of Attorney executed in favour of respondent No.3 defendant No.2 on 2 nd May, 1996, the Trial Court opined that since it was a registered document, there was legal presumption about the companyrectness of the valuation of the document for the purpose of stamp duty.
It is further asserted by the appellant plaintiff that in furtherance of the said agreement to sell the second defendant was put in possession of the property agreed to be sold, in part performance of the agreement of sale and that fact has been recited in the agreement of sale itself.
The 1st defendant did number fulfill his obligation within the stipulated period as a result of which a suit for specific performance, permanent injunction and alternative relief of refund of the advance amount came to be filed on 2nd August, 2010.
It is number necessary to dilate on the factual matrix as the issue to be answered in the present appeal proceedings is very limited.
The defendants filed their written statement to companynter the claim set up in the plaint by the appellant.
Being aggrieved by the said decision, respondent Nos.1 2 defendant Nos.3 4 preferred a civil revision petition before the High Court of Judicature at Madras being CRP D. No.1700/2016.
The agreement also authorized the second defendant, at its discretion, to develop the property by companystructing dwelling units thereon for which the predecessor in title of respondent Nos.1 2 namely the original 1 st defendant was to companyperate and give companysent, whenever and wherever necessary, for the unhindered development of the property.
That application was rejected by the Trial Court on 20th June, 2011 against which the original defendant No.1 and defendant No.3 respondent No.1 filed a revision petition before the High Court of Judicature at Madras, being CRP MD No.3422/2011.
That application was decided by the Trial Court on 1 st June, 2016 partly in favour of defendant Nos.3 4.
It companyld number have been executed on the stamp paper of Rs.100/. Hence, the document was inadmissible and companyld number be received as evidence.
The appellant plaintiff accepted the said offer after doing due diligence and resultantly, an agreement of sale came to be executed on 9 th July, 2003 by the 1st defendant the original owner of the suit property namely the predecessor in title of respondent Nos.1 2 in favour of the appellant plaintiff through his Power of Attorney holder, namely, respondent No.3 2nd defendant for a companysideration of Rs.1 crore.
The appellant plaintiff was put in possession of the suit property upon execution of the agreement of sale dated 9th July, 2003.
They were unsuccessful as the High Court dismissed the revision petition on 30th September, 2011 holding that the question of payment of stamp duty or the admissibility of the document companyld be decided only when the stated documents were sought to be marked through witnesses and number at that stage.
That Power of Attorney was registered on 2nd May, 1996 in the office of Sub Registrar, Coonoor.
The High Court, accordingly, allowed the civil revision petition and was pleased to set aside the order passed by the Trial Court and instead allowed the application filed by respondent Nos.1 2 defendant Nos.3 4 , by holding that the General Power of Attorney dated 2nd May, 1996 was given for companysideration as it was in furtherance of the agreement of sale dated 12th November, 1995.
The documents were marked and merely exhibited subject to proof and relevancy.
The High Court numbered that since the said General Power of Attorney refers to the agreement to sell dated 12th November, 1995, the terms and companyditions specified in the latter document would get incorporated into the Power of Attorney, meaning thereby it was given for companysideration, and therefore, it would attract stamp duty applicable to a deed of companyveyance.
H48A in R.S. No.332/1 of Coonoor Rural Village.
It was then asserted by the appellant plaintiff that to effectuate the stated agreement to sell, a registered Power of Attorney was executed in favour of the second defendant respondent No.3 by the owner original first defendant .
Whereas, the suit agreement was executed subsequently on 9 th July, 2003.
He had entered into an agreement of sale with respondent No.3 defendant No.2 on 12 th November, 1995 agreeing to sell the said property either to the second defendant or its numberinees.
The appellant filed a suit in the Court of District Judge of the Nilgiris at Udhagamandalam, being O.S. No.23 of 2010, against Mr. Charles Thomas Orme Alford Wright who died during the pendency of the suit whereafter respondent Nos.1 2 herein defendant Nos.3 4 were brought on record as his heirs and legal representatives.
M. Khanwilkar, J. This appeal emanates from the decision of the High Court dated 2nd December, 2016 allowing the application preferred by respondent Nos.1 2 defendant Nos.3 4 whereby the admissibility of the documents produced by the appellant Signature Not Verified Digitally signed by plaintiff in the suit filed by him for relief of specific SUBHASH CHANDER Date 2018.07.04 133520 IST performance of companytract with alternative relief of refund of Reason advance amount and permanent injunction against the defendants was questioned.
