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PETITIONER: SYED ABDULKHADER

       Vs.

RESPONDENT: RAMI REDDY & ORS.

DATE OF JUDGMENT29/11/1978

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SHINGAL, P.N.

CITATION:  1979 AIR  553            1979 SCC  (2) 601

ACT:      Powers of  Attorney Act,  1882(7 of  1882), s.  2-Three principals if  could jointly  constitute   an   agent  by  a ’power of  attorney’-Construction-Surrounding  circumstances if could  he taken  for ascertaining  the intention  of  the parties.      Code of  Civil procedure 1908 (Act 5 of 1908) Or. 41 Y. 27-No right  conferred on  a  party  to  produce  additional evidence Only  court  hearing  action  has  jurisdiction  to permit.      Transfer of Property Act 1882(4 of 1882) S. 41 & Trusts Act 1882(2 of 1882)-s. 82-Benami Transaction-Ingredients of.

HEADNOTE:      The plaintiff  (appellant), his father and step brother were owners  of lands  in a  village in  the former State of Hyderabad. Coming  to know  that the two brothers and father were contemplating  to migrate  to Pakistan, defendant No. 1 suggested to  the  plaintiff  that  he  would  manage  their properties but  that since  he was  not in  good  health,  a nominal power  of attorney  might be  granted in  favour  of defendant No.  34. The  power  of  attorney  (Ext.  Pl)  was granted tc  defendant 34  by  all  of  them.  It  was  later supplemented  by  another  deed  (Ext.  P2).  The  plaintiff alleged that  sometime thereafter  he realised  that the two defendants in  collusion with  each  other  transferred  his lands  to   others  for   no  consideration   or  inadequate consideration and  that thereby a fraud was perpetrated upon him by  the defendants.  Thereupon, it  was further alleged, the plaintiff  and his  brother published  in the newspapers and the  official gazette  a notice  cancelling the power of attorney granted to defendant No. 34. The plaintiff sued the defendants for  recovery of  possession of lands and certain other benefits.      The defendants  on the  other hand claimed that the two documents being  valid the  plaintiff could  not resile from them. They  also alleged that the plaintiff was not the full and absolute owner of the lands but was a benamidar.      The trial  court dismissed the plaintiff’s suit holding that the  documents were  valid The  High Court  upheld  the trial court’s  order. It however held that the plaintiff was the absolute owner of the suit properties      Dismissing the appeals.

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^      HELD 1(a)  There is  no force in the contention that it is impermissible  for three persons to jointly grant a power of attorney in favour of defendant no. 34. Co-principals may jointly appoint  an agent to act for them and in such a case they become  jointly liable  to him and may jointly sue him. [430C,F]      (b) The  relation of  agency arises  when  one  person, called the  agent, has authority to act on behalf of another called  the   principal  and   consents  so   to  act.   The relationship has  its genesis  in contract. In order to show that it is imper-- 425 missible for three principals to jointly constitute an agent by a  common power   of attorney it should be shown that the provisions of  Contract Act  or the  general law of contract have been violated by such a contract. [430E]      In the instant case there is no such violation.      Halsbury’s Laws  of England  Vol. 1  4th Edn.  para 726 referred to.      2. There  is no  force in the contention that since the two documents confer a joint power of attorney in respect of properties of  the three co-principals, the agent could look after the joint properties of the donors alone and not their individual affairs.  What a  power  of  attorney  authorises depends on  its terms  and the  purposes for  which  it  was executed. Where  someone other  than the  person Who has the right to  act in  respect of  certain things,  has  under  a contract of  agency, the  right to  act  on  behalf  of  the principal, the authority conferred by the written instrument has to  be  strictly  construed.  Ordinarily  the  power  of attorney is construed strictly by courts. It is equally well established that  in considering a contract it is legitimate to take  into  account  the  surrounding  circumstances  for ascertaining the intention of the parties. [430H, 431A, 431H 432A, F]      Bryant, Powis  and Bryant  Ltd v.  La Banque du Peuple, 1893 A.C. 170 at 177, Modi & Co. v. Union of India, [1963] 2 SCR 565: referred to.      In the  instant case  in Ext.  P1 at  three places  the expressions used  are" our  power of  attorney to act on our behalf and  we empower  the said person‘’. ’on our behalf in all departments", and lastly, "acts done and effected by the agent shall  be deemed  to be  acts done and effected by the principals." The  power of  attorney having  keen granted by three co-principals  in favour  of one  agent the expression "on our  behalf" would  hardly be  decisive of  the scope of authority   conferred   by   the   deed.   The   surrounding circumstances clearly  established  that  each  of  the  co- principals had  his land, each of them could not have access to this land and therefore could not manage them, and with a view to migrating to Pakistan each of them apparently wanted to dispose  of his  lands and collect cash and therefore for this purpose each of them wanted to constitute defendant no. 34 to  be his  agent in  respect of his individual property. 1432C. G, 433F]      3. A  general power  of attorney  is not a compulsorily registrable document.  When those  who executed a deed admit having executed  it, the  tact that the Sub-Registrar failed to endorse  that the  executants were known to him would not render the  deed invalid. Nor is there a legal obligation on the part  of the  Sub-Registrar to  make an endorsement that the persons executing a deed were either personally known to him or were identified by someone known to him. [434C, B]      4. There  is  no  force  in  the  submission  that  the

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authority given under Ex. P1 was only to manage the property and not  to sell  it. Ext.  P1 clearly shows that apart from the power to manage the property a further power to purchase and sell lands was conferred on the agent. The general power of attorney  conferred wide authority on defendant no. 34 to file suits,  defend actions.  engage lawyers.  purchase  and sell land and execute sale deeds and so on. [434D-E, 435A]      5. A  document  will  be  considered  as  a  whole  for interpretation  of   particular  words   or  directions.  An ordinary authority  given in one part of the instrument will not be  cut down  because there  are ambiguous and uncertain expressions elsewhere.  A power of wide amplitude conferring wide authority cannot by 9-978 SCI/78 426 construction be narrowed down to deny an authority which the donor expressly wanted to confer. [436B]      Halsbury’s Laws  of England  4th Edn.  Vol. 1 para 733; referred to.      6. (a)  By a  catena of  decisions of  this Court it is well established  that Order  41 Rule  27  C.P.C.  does  not confer a  right on  a party  to produce  additional evidence before an  appellate court.  But if  the court  hearing  the action requires  any document  to  enable  it  to  pronounce judgment, it  has  the  jurisdiction  to  permit  additional evidence to  be  produced.  If  the  High  Court  considered production of  registered sale  deeds essential to enable it to pronounce  judgment, there  is no  reason why  this Court should  interfere  with  the  discretionary  power  properly exercised by  the High  Court in  the interest  of  justice. [439E-F]      7. (a) The contention that defendant no. 34 who was the constitute attorney  acted as a mere rubber stamp in certain transactions has  no force.  Section 41  of the  Transfer of Property Act  provides that where, with the consent, express or implied  of the person interested in immovable‘ property, a person  is the  ostensible  owner  of  such  property  and transfers the same for consideration, the transfer shall not be voidable  on the  ground  that  the  transferor  was  not authorised to make it. [436D, 437F]      (b) Even  if the  father of the plaintiff could be said to be  the ostensible  owner of the land and he purported to sell the  land, the plaintiff had acquiesced in the sale and accepted the  consideration. He  would therefore be estopped from challenging  the tile which was transferred pursuant to the sale. [437E]      Ramcoomar v.  Macqueen, 1872  I.A.  11  Bengal  LR  46; referred to.      8.  (a)   The  contention  that  the  plaintiff  was  a benamidar cannot  be accepted. The genesis of the concept of benami is  that consideration  for a transfer must flow from one person  and the  transfer is  taken in  the name  of the other person  and  the  consideration  so  flowing  for  the transfer was  not intended  to be  a "gift  in favour of the person in  whose name  the  transfer  is  taken.  All  these ingredients of benami ale absent in the instant case. [440H]      (b) Section 82 of the Indian Trusts, Act, 1882 provides that where  property is  transferred to  one  person  for  a consideration paid  or provided  by another  person, and  it appears that  such person  did not  intend to pay or provide such  consider  for  the  benefit  of  the  transferee,  the transferee must  hold the  property for  the benefit  OF the person paying or providing, the consideration. [440F]      (c) The  plaintiff’s father  held a  high office in the Nizam’s Government.  He might  have influenced  the Nizam to grant the land to his son. There is no evidence to show that

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the patta  was for  consideration.  Even  if  the  Nizam  in appreciation of  the service  rendered  by  the  plaintiff’s father granted  the land  to the  plaintiff it  could not be said that  any consideration  flowed from  the father of the plaintiff so as to make him a benamidar. [440E, G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1271 of 1969.      Appeal from  the Judgment  and Order dated 17-8-1966 of the Andhra  Pradesh High Court in Appeal Nos. 252 and 283 of 1960. 427      V.  Gopala   Krishnaiah,,  A.  K.  Ganguli  and  D.  P. Mukherjee for  the Appellant.      Upendralal Waray and A. Subba Rao for the Respondent.      The  Judgment of the Court was delivered by      DESAI J.  This  appeal  by  certificate  granted  under Article 133(1)(a) of the Constitution arises from Civil Suit No.  23/1   of  1952  filed  by  the  appellant  against  56 respondents  for   recovering  possession   of  lands   more particularly set  out in the Schedule annexed to the plaint, mesne profits,  accounts  and  injunction,  which  suit  was largely dismissed  and partly decreed by the trial Court but in appeals  bearing A.  S. Nos.  252 and  283 of 1960 by the unsuccessful defendants  and the plaintiff, respectively, as dismissed as a whole.      A brief  narration of  facts necessary for appreciating the contentions  raised herein  may be  set out.  Plaintiff- appellant is  the son  of late  Kazim Yar  Jung  who  was  a Minister of H.E.H. the Nizam of Hyderabad. The father of the plaintiff obtained  grant of  certain lands  in  Ryalamadugu village from the Government of  Nizam, the patta having been granted in  the name  of the plaintiff. At about the time of police action in 1948 when the local conditions in Hyderabad City and  State were  disturbed, the  plaintiff, his  father Kazim Yar  Jung  and  his  step  brother  Mustafa  found  it difficult to even approach their lands and the plaintiff was then  contemplating   to  shift  to  Pakistan  with  others. Defendant No. 1 Rami Reddy who was a police Patel approached the plaintiff  and represented  that  he  would  manage  the affairs of  the plaintiff,  his brother and father, out that is he was not keeping well a nominal Power of Attorney would have to  be granted  to defendant  no.  34  Uppara  Sattayya whereupon the  plaintiff, his  father  and  brother  jointly executed a Power of Attorney, Ext. P-1 dated 10th April 1949 in favour of defendant no. 34 which was further supplemented by the  deed Ext.  P-2 dated  20th April 1949. The plaintiff alleged that in October 1949 he came to know that defendants nos. 1  and 34  were perpetrating fraud when on 25th October 1949 the  plaintiff and  his  brother  Mustafa  published  a notice in  the newspapers  and the  Gazette  cancelling  the Power of  Attorney granted  in favour  of defendant  no. 34. Plaintiff then came to know that defendant nos, 1 and 34 and other  defendants   in  collusion   with  each   other   got Transferred the lands of the plaintiff for inadequate or 110 consideration  and   that  a   fraud  was  perpetrated.  The plaintiff further  alleged that  the Power  of  Attorney  is vague  and   void  and  inoperative  and  would  not  clothe defendant no.  34 with  legal authority  to  deal  with  the properties in the manner in which they have been dealt 428 with. At  any rate,  the Power  of Attorney  did not  clothe

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defendant no,  34 with  the authority  to sell the land and, therefore, the purchasers have not acquired any title to the lands purporting  to have been sold by defendant no. 34. The plaintiff accordingly sued for possession, mense profits and accounts from the defendants.      Different groups  of defendants  filed  three  separate written statements  but more  or less the contentions raised in the  various written  statements are identical. The first contention is  that the  plaintiff  was  not  the  lull  and absolute owner  of  the  suit  lands  but  was  a  benamidar inasmuch as  the lands  were granted  to the  father of  the plaintiff who  was a  Minister in the Nizam’s Government but the patta  was formally  taken in  the name of the plaintiff who was  then a  minor. It was also contended that the Power of Attorney,  Ext, P-l  with P-2  was legal  and  valid  and binding and it clothed del‘defendant 34 with an authority to sell the lands and different parcels of lands have been sold to different  defendants  for  full  consideration  and  the plaintiff was  aware of  it and  is now  trying to  take  an advantage on  the basis of a technical plea. There were some other contentions which at this stage are hardly relevant.      The trial  Court held  that the  plaintiff was the full and absolute  owner of  the suit  properties. The  Power  of Attorney Ext.  P-1 was not vitiated by fraud and has clothed defendant No.  34 with  the necessary  authority to sell the lands and  the sale  of different parcels of lands in favour of different  defendants were not vitiated by fraud and each sale was for consideration and binding on the plaintiff. The Trial Court  further held  that the properties bearing Items 27 to  40, 42-44,  46, 47,  55-67 and  69 set  out  in  the’ Schedule annexed  to the plaint were not proved to have been sold, the  conclusion having  been based  on the only ground that no  sale deeds  were forthcoming and accordingly it was held that  the plaintiff  was entitled to recover possession of the  aforementioned  pieces  of  land.  The  trial  Court accordingly dismissed the suit except for the aforementioned pieces of  land in  respect of which a decree for possession and mesne profits was granted in favour of the plaintiff.      Two appeals  came to be filed to the High Court. Appeal bearing A. S. 252/60 was preferred by original defendants 8, 9 and  11 to  the extent decree was made against them by the trial Court. Appeal bearing A.S. 283/60 was preferred by the plaintiff to  the extent  the suit  was dismissed.  Both the appeals came  to be  disposed of by a Division Bench  of the Andhra Pradesh  High Court  by a common judgment rendered on 17th August  1966 by which A.S. 252/60 preferred by original defendants 8.  9 and  11 was  allowed and  the  decree  made against them 429 in favour  of the  plaintiff was  set aside,  and A.S. 283/6 preferred by  the plaintiff  was dismissed. As a consequence the entire  suit of  the plaintiff came to be dismissed with costs in one set.      The plaintiff thereupon approached the High Court for a certificate and  on a  certificate under  Article 133(1) (a) being granted, the plaintiff lodged the present appeal.      When the  appeal reached  the stage  of hearing  on  an earlier occasion,  CMP. 17845/78  was filed  requesting  the Court to  record a  memorandum  of  compromise  between  the appellant and the legal representatives of respondents 1, 2, 3, and  respondent 34  inviting the  Court  to  dismiss  the appeal of  the plaintiff appellant against them. By an order made by  this Court,  this compromise  was recorded  and the appeal was so down for further hearing against the remaining respondents. We  take note of this compromise because on the

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basis of  this compromise  a submission  has  been  made  on behalf of  the remaining respondents that the appeal against them would no more survive.      Mr.  V.   Gopalakrishnayya,  learned  counsel  for  the appellant urged  that it  is impermissible  in law to give a joint Power  by  three  persons  in  favour  of  one  agent. Alternatively it  was contended  that if  such  a  power  of Attorney is  legal and  valid it would clothe the agent with the only authority to Act in respect of the joint affairs or property of the principals and not for any individual affair or property  of any  one of  them. It was further urged that upon a  true construction  of the authority conferred by the Power of  Attorney, Ext-P-1  the  scope  of  authority  only encompassed the  management of  the joint  properties of the three co-principals or at best the management of property of each one  of the principal but it did not clothe him with an authority to  sell the  property of  any one of them and the situation is not improved by the supplementary deed, Ext. P- 2. Alternatively  it was contended that if Ex. P-1 conferred an authority  to sell  the land  it was  hedged  in  with  a prerequisite that  the property  can be  sold to finance the litigation or  to repay  the loan,  if any, borrowed for the aforesaid purpose. In this context it was submitted that the Court should  bear in  mind that  the garden is on the party who seeks  to rely  on  the  authority  of  the  constituted attorney to  establish that  the impugned  transaction falls within the  ambit of  authority of the attorney, and in this connection it  may be  borne in  mind  that  ordinarily  the courts construe  Power of  Attorney strictly.  It  was  then urged that even if it is held that by the combined operation of Exts.  P-1 and P-2 the Attorney had the authority to sell the land  he had  not acted  on his own but merely completed the sale negotiated by an outsider and thereby he acted as a rubber stamp  and such an act of the attorney would not bind the principal, and in that 430 event the  purchaser did  not acquire any title to the land. It was  also contended  that the  High Court was in error in admitting the  three sale  deeds by  granting  CMP.  2762/61 purporting to  act under  Order 41, rule 27, Civil Procedure Code, and  if they  are excluded  from consideration, in the absence of  sale deeds the decree of the trial Court against original defendants 8, 9 and 11 will have to be restored.      On behalf  of the  contesting respondents  it was urged that the plaintiff being benamidar, cannot maintain the suit on the  allegation that he is the full and absolute owner of the properties.      The first  contention of  the appellant  is that it was impermissible in  law for  three persons  to jointly grant a Power of  Attorney in  favour of  defendant 34.  Barring the ipse dixit of the learned counsel nothing was shown to us to make such  a joint  power impermissible in law. The relation between the donor of the power and the donor of the power is one of  principal and  agent and  the expression ’agency’ is used to  connote the  relation which exists where one person has an  authority or  capacity  to  create  legal  relations between a  person occupying  the position  of principal  and third parties.  The relation  of agency  arises whenever one person called  the agent  has authority  to act on behalf of another called  the principal  and’ consents  so to act. The relationship has its genesis in a contract. If agency is the outcome of  a contract  between the principal and the agent, in order  to show that three principals jointly constituting an  agent   by  a   deed  called  ’Power  of  Attorney’  was impermissible, provisions of Contract Act or the general law

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of contract  should have  been shown as having been violated by such  a contract.  Nothing of the kind was pointed out to us. On  the contrary, in Halsbury’s Laws of England, Vol. I, 4th Edn.  para  726,  the  following  proposition  has  been stated:           "Co-principals may jointly appoint an agent to act      for them  and in such case become jointly liable to him      and may jointly sue him."       We  are in  agreement with  this view  and, therefore, three principals could jointly appoint an agent.      The next  limb of  the submission was that if three co- principals jointly constituted an agent then unless contrary is indicated  by the  deed of  the Power  of  Attorney,  the necessary inference  would be  that the  agent  can  act  in respect of  those affairs in which all the co-principles are jointly interested.  In other words, it was said that such a Power of  Attorney would  clothe the agent with an authority to act  in respect of joint affairs of the co-principals. We are unable to find any force in this 431 argument, for  what the Power of Attorney authorises depends on its   terms  and the purpose for which it is executed. It would, therefore,  be necessary  to refer  to the  Power  of Attorney, Ext.  P-l and  the supplementary  deed, Ext.  P-2. Ext. P-l  is dated  10th April 1949 and is styled as general Power of Attorney. The co-principals are: (1) plaintiff Syed Abdul Khader  (2) Kazim  Yar  Jung,  and  (3)  Syed  Mustafa Hussain. The purpose for which the power was executed is set out in Ext. P-l in the following words:           ". ..that  in view  of our private needs and as we      are unable to conduct cases and answer them in time, we      therefore appoint Copper Sattayya son of Coper Durgayya      resident of  Ghanpur, Medak  Taluq as our general power      of Attorney  to act  on our  behalf and  we empower the      said person  through this  power of  Attorney that  the      said Muktar can conduct the cases (Parvi) of all sorts,      question and  answer, admit  or deny,  either orally or      writing on  our behalf  in all  departments, civil  and      criminal courts,  in the  High Court,  in the  judicial      committee, in the Revenue Departments of the Districts,      namely, in  the offices  of the  IInd, IIIrd,  and  Ist      Taluqdars, the Tahsil Offices etc and purchased or sell      (sic) of lands and that he is authorised to appoint any      pleader or  special Muktar when occasioned (sic) and to      stop or  to take  or file  any copies in any suit or to      file any  suit or  file any written statements with his      own signature  to fetch  any loan  for our  business or      lands or to pay the debts from out of the income of the      estate or  to purchase or sell the lands and to execute      the sale  deeds and  get registered under his signature      etc ... "      The last  sentence is  that "all  the acts  of the said Muktar shall  be deemed  to be  acts done and effected by us which we  hereby accept  and approve".  Subsequently on 20th April 1949  a supplementary Power of Attorney in addition to Ext. P-l  was executed by the aforementioned three donors of Power  in  favour  of  defendant  no.  34  in  which  it  is specifically  stated  that  they  affirm  earlier  Power  of Attorney dated  10th April  1949 and thereafter the relevant recital is as under:           ".. .But  by the said document, the powers of sale      and registration  were not  confirmed (sic)  on him and      that therefore  through this  deed the  same is  hereby      confirmed (sic) on him’.      It was  urged that  the Court  should bear  in mind the

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first principle  that a Power of Attorney has to be strictly construed. Undoubtedly,  where someone other than the person who has a right to act in respect 432 of certain things has, under a contract of agency, the right to ac.  On be-half  of principal, the authority conferred by the  written   instrument  has  to  be  strictly  construed. Ordinarily a  Power of  Attorney is  construed  strictly  by Courts (vide  Bryant, Powis  and Bryant Ltd. v. La Banque du Peuple) (1).      Adopting the  principle of  strict  construction  of  a Power of Attorney, the first question that is required to be answered is  whether the  Power of  Attorney, Ext.  P-l  was meant to  confer the  authority on  the agent to act only in respect of  the joint  affairs or  joint property of the co- principals or  it was  in respect  of the individual affairs and effects  of each principal. In Ext. P- 1 at three places the expression used is: "our Power of Attorney to act on our behalf and  we empower  the said person"; then again "on our behalf in  all departments", and then lastly, "acts done and effected by  the agent  shall be  deemed to be the acts done and effected  by the  principals." Mr. Gopalakrishnayya said that it  would be  extraordinary to hold that the expression "on our behalf" as disclosing a conjoint action on behalf of more than  one person could ever be interpreted by any canon of construction as one on behalf of each individual. He said that apart  from the  strict construction the Court must put on a  Power of  Attorney, where  the terms  of  the  written contract are  clear and  unambiguous it is impermissible for the Court to take into consideration the other circumstances to determine  the intention  of the parties. When a contract is reduced  to writing,  undoubtedly the  Court must look at the terms of the contract and proceed on the assumption that the parties  intended what  they have  said and if the terms are unambiguous  the Court  must give effect to the terms of the contract.  However, it  is well  establish  ed  that  in considering a contract it is legitimate to take into account the surrounding circumstances for ascertaining the intention of the parties (vide Modi & Co. v. Union of India).(2)      Exhibit P-l  being a Power of Attorney granted by three co-principals in favour of one agent, the expression "on our behalf" would  hardly be  decisive of the scope of authority conferred by the deed. The circumstances in which such Power of Attorney  came to  the executed  and the  fact that three different persons  though near relations but having no joint property or  venture joined in executing a Power of Attorney and the  purpose and  object for  which it was executed when taken into  consideration would  throw light  on  the  true, nature of  the authority  conferred by  the  deed.  In  this connection it  is an  admitted position  that the  Power  of Attorney was executed in April 1949 and that too, in the.      (1) [1893] A.C. 170 at 177.      (2) [1968] 2 S.C.R. 565. 433 State of Hyderabad, the erstwhile Nizam’s State. In the wake of police  action in  the fall  of 1943 and thereafter there were unusually  disturbed  conditions  in  Hyderabad  State. Plaintiff himself  has stated  in plaint  para  1  that  the conditions in  Hyderabad were  disturbed. that like himself, his father  and brother  found it  difficult to make contact with their  properties and  it was being contemplated by the plaintiff that  he might  shift to Pakistan with others. All the  three   persons,  i.e.  his  father,  brother  and  the plaintiff found it difficult even to approach the properties of each of them and that all of them were contemplating;, to

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migrate to  Pakistan. In his belated evidence in Court after defendants’ evidence  was closed  the plaintiff  re-affirmed that after police action he lost possession of his lands and it was  difficult to  approach the lands or manage the same. Even  his   clerk  was   not  willing   to   undertake   the responsibility. Further  there is  no evidence  to show that all the  three co-principals  had any  joint property or any joint business  or any  joint venture  in  which  they  were jointly interested.  Plaintiff says in his evidence that all the three  joined in  executing Power  of Attorney  Ext. P-1 because each  of them had his land in that area and each was unable to  manage his  land. In  this background it would be futile to  say that  the three  co-principals  executed  the power of  Attorney in favour of the agent to lookafter their joint affairs and joint property alone. In fact, plaint para I leaves  no room  for doubt  that each  of  the  three  co- principals neither  could manage  nor could  have access  to each one’s  own property and that each one was contemplating to migrate  to Pakistan and that therefore they all gathered together and  executed one  Power of  Attorney in  favour of defendant No. 34 as a matter of convenience for dealing with the property  of each  one of  the  co-principals.  It  thus clearly transpires  that each  one of  the co-principals had his land,  that each  one of  them was  unable to manage his land, and  that all  the three of them were contemplating to migrate to Pakistan and that they wanted possibly to dispose on their  lands, collect  cash and skip over to Pakistan. If Power of  Attorney Ext.  P-1 was executed in this background it would illumine the scope and ambit of authority conferred by Ext. P-1. It would clearly appear that each one wanted to constitute defendant  34 to  be his  agent in respect of his property.  Therefore,  the  contention  that  the  power  of attorney Ext.  P-1 read with Ext. P-2 was a joint power only in respect  of joint  properties of  the three co-principals must be rejected.      An incidental  submission may  be disposed  of at  this stage. It  was urged  that the Power of Attorney Ext. P-1 is legally  invalid   and  defective   in  form  and  that  the supplementary document  Ext. P-2  does not  render in valid. The defect pointed out is that when Ext. P-1 was offered for registration the  Sub-Registrar has  nowhere  noted  in  his endorsement 434 that the  donors of  the power  who executed  the  Power  of Attorney Ext. P-1 were identified to him by someone known to him or  they were  personally known  to him. Undoubtedly the Sub-Registrar in  order to  be satisfied  that there  is  no impersonation may  require  some  person  known  to  him  to identify those  who admit  execution before  him but in case the persons  who have executed the deed before him are known to him the failure to endorse that fact on the deed does not render the  deed invalid. In any event if those who executed the deed  admit having  executed the deed, the fact that the Sub-Registrar failed  to endorse  the fact  of  the  persons being known  to him  would not  render the  deed invalid.  A General Power  of Attorney is not a compulsorily registrable document. No  rule or  regulation was  pointed out  to us in support of  the submission  that it  was obligatory  for the Sub-Registrar to  make the  endorsement that  those who have executed the  deed were  either personally  known to  him or were identified by someone known to him. Therefore, there is no merit in the contention and it must be rejected.      The next contention is that upon a true construction of Ext. P-1,  the authority conferred thereby was to manage the property of  the donors  of the  power and it did not confer

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any  authority   to   purchase   or   sell   the   property. Simultaneously it  was stated that Ext. P-2 does not improve the position  in this  behalf. Both the Courts have rejected this submission  and for very good and convincing reasons. A bare perusal  of Ext.  P-1 clearly shows that apart from the power to  manage the  property, a  further power to purchase and sell lands was conferred on the agent. Power to purchase and sell lands has been expressly mentioned at two places in Ext. P-1.,  But even  apart from  this, the plaintiff in his cross-examination has admitted that after executing Ext. P-1 the Registrar pointed out that the Power of Attorney Ext. P- 1 does  not confer  the authority to sell land and offer for registration sale  deed and  requested  them  to  execute  a supplemental document  expressly confer  ring such authority and he  identified Ext. P-2 to be the supplemental document. Ext. P-2 has been reproduced in extenso by the High Court in its judgment  and in no uncertain and most unambiguous terms it is stated therein that the power to sell and registration of sale deed was conferred by Ext. P-2. But even if Ext. P-2 were  to  be  excluded  from  consideration,  the  Power  of Attorney Ext.  P-1 clearly confers an authority on the agent to sell  the property.  If  we  recall  at  this  stage  the circumstances in  which Ext.  P-1 came  to  be  executed  in favour  of   defendant  no.  34,  it  clearly  appears  that plaintiff., his  father and  brother were   keen  to get the lands  sold   as  they  were  contemplating  to  migrate  to Pakistan. In  the face of this express and explicit power it could not  be said  that the authority was conferred only to manage the property. 435 In Ext.  P-1 the  expression ’to  manage  the  property’  is nowhere to  be   found. On the contrary the general Power of Attorney  is  couched  in  a  language  which  confers  wide authority to  file suits,  defend actions, engage advocates, appear in  various  offices,  purchase  and  sell  land  and execute sale deeds and get them registered, to borrow money, to employ  persons needed  for carrying  out affairs  and to dismiss them.  It is  difficult to appreciate the submission that the  authority was  only to  manage the  property.  The submission is not borne out by the contents of Exts. P-l and P-2.      Incidentally in  this connection  it was urged that the power to purchase and sell land and to execute documents and to offer them for registration does not include the power to sell agricultural  land. This has only to be mentioned to be rejected because  the expression  ’lands’ would include both agricultural and non-agricultural land.      The next  contention is  that even if the Court were to accept that the authority conferred by the Power of Attorney encompasses the  authority to  sell land,  the power to sell land was  hedged in  with a  pre condition  1 or with a pre- requisite that  the land  could be sold either for Financing litigation or  if for  that purpose  a loan was borrowed, to repay the  loan. Sustenance  is sought  to be drawn for this submission from the following few lines in Ext. P-1:           ". .. and purchase or sell (sic) of lands and that      he is  authorised to  appoint any  pleader  or  special      Muktar when  occasioned (sic) and to stop or to take or      file any  copies in any suit or to the any suit or file      any written  statements with his own signature to fetch      any loan  for our business or lands or to pay the debts      from out  of the income of the estate or to purchase or      sell the  lands and  to execute  the sale deeds and get      registered under  his signature  and to obtain money or      to enter  into a  compromise in  any  suit  or  get  it

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    settled through arbitration or to withdraw any suit.. .      etc." In Ext. P-2 the supplemental Power of Attorney, it is stated that the  power for  sale and  registration of documents was conferred on  the agent  The, construction  suggested is not warranted by  the language  used in  Ext. P-l.  The power to purchase or sell land was not hedged in by any pre-requisite or pre-condition. Each recital constitutes a separate power, namely, (i)  power to  purchase or  sell land, (ii) power to appoint a  pleader or  Mukhtar, (iii)  power to file suit or appear and file written statement (iv) power to borrow money or to  enter into any comprise in any suit or get it settled through arbitration  and  withdraw  any  suit  each  was  an independent power. There is nothing in Ext. P-1 which 436 would even  remotely indicate  that the  land could  be sold only for  financing the  litigation or if for that purpose a loan was  borrowed, to  repay the  loan Such  power of  wide amplitude  conferring   such  wide   authority   cannot   by construction be narrowed down to deny an authority which the donors expressly  granted. The  ordinary authority  given in one part  of the  instrument will  not be  cut down  because there are  ambiguous and uncertain expressions elsewhere but the  document   will  be   considered   as   ?   whole   for interpretation  of   particular  words  or  directions  (see Halsbury’s Laws  of England,  4th Edn., Volume I, Para 733). The contention, therefore, must be negatived.      The next  contention is  that even  if Ext. P-1 confers authority on  dependant 34  to sell  land, the  authority so conferred on  defendant 34  was to act on his own and not at the behest  of an  outsider or  as a rubber stamp of someone and that  in this  case evidence  clearly shows  that it was Kazim Yar Jung, the father of the plaintiff who entered into an agreement,  Ext. D-18  dated  14th  February  1949,  with defendant no.  1 for sale of land and the agent defendant 34 merely rubber  stamped the  sale and  executed the sale deed and that  such a  sale is  not binding  on the plaintiff. At first blush  the argument  is really  attractive but it does not stand scrutiny. Land involved in the dispute was granted by the Nizam when the father of the plaintiff was a Minister in the  Nizam’s Government.  Patta evidencing  the grant was taken in  favour of  the plaintiff who was then a minor. The father of  the plaintiff  really believed  that he  was  the owner of  the land and in fact on 20th October 1949 he wrote to Tahsildar,  Medak; that  his son was a benamidar and that the lands  may, therefore, be transferred in his name. Thus, the father  of the plaintiff acted as if he was the owner of the land but when a contention on; behalf of the respondents that the  plaintiff  was  a  benamidar  would  be  presently examined, it would be painted out that the plain tiff we the real owner  and was  not a benamdar. That is the true legal. position. the  fact, however,  remains hat the father of the plaintiff who  must be a man of considerable influence being a Minister in the Government of Nizam, must have acted as if he was  the owner  of the  land. Undoubtedly,  the agreement Ext. D-18  for sale  of land  was entered  into between  the father of  the plaintiff and defendant no. l and pursuant to this agreement  defendant no.  34 executed  a sale  deed  in favour of  defendant no.  31, but it may be noticed that the agreement Ext. D-18 was entered into two months prior to the grant of  Power of  Attorney, Ext.  P-1. There  is, however, evidence to  show that  the agreement  for sale  of land and the sale  deed were taken in the presence of and to the know ledge and  with the  full  acquiescence  of  the  plaintiff. witness Kishta Reddy, D.W. 2 has stated in his evidence that

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defendant 1 Rami Reddy 437 paid the  consideration for  purchase of  land  pursuant  to agreement Ext.     D-18 to plaintiff in his own presence. He has further  stated that  Kazim Yar Jung, Plaintiff’s father and daughter  of  Kazim  Yar  Jung  and  both  of  his  sons including the  plaintiff were  present when  the  amount  of consideration was  paid. This witness’s presence at the time of payment  of  consideration  cannot  be  disputed  because receipt Ext.  D-16 which  evidences payment of consideration for the  sale of  land to  defendant No. 1 though signed and passed by  Kazim Yar  Jung, the father of the plaintiff, was attested  by   him.  This   evidence  which   has   remained uncontroverted would show that the consideration for sale of land in  favour of defendant 1 pursuant to agreement of sale Ext. D-18  was paid to the plaintiff in the presence of this witness and  plaintiff accepted  the same though the receipt Ext. D-18  was passed  by the  father of  the  plaintiff.  A feeble  attempt   was  made  to  explain  this  inconvenient evidence by saying that in agreement Ext. D-18 lands are not especially described  by setting  out the  Survey Numbers or the Khata  Numbers and  as in  that very village plaintiff’s father had  also his  lands, the  plaintiff may have as well remained under  the impression  that the father had sold his own lands  and, therefore,  could not  raise  any  objection about the sale. This explanation cannot be swallowed for the obvious reason that there was no reason for the plaintiff to accept the  consideration or  the consideration being put in his hands if his land was not being sold. Even if the father of the  plaintiff could be said to be an ostensible owner of the land  and he  purported to  sell the land, the plaintiff the real  owner as  he claimed  to be  had acquiesced in the same and  accepted the. consideration and in this background he would  be estopped  from challenging  the title which was transferred pursuant  to the sale. In the back-drop of these circumstances the  principle enunciated in section 41 of the Transfer of  Property Act  would come  to the  rescue of the transferee. Section  41 of  the  Transfer  of  Property  Act provides that  where, with  the consent, express or implied, of the  person interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that  the transferor  was not  authorized to make it. Section 41  codifies what was once treated as a principle in equity which  the Judicial  Committee had recognised in Ram- coomar  v.  Macqueen,.(1)  wherein  the  Judicial  Committee observed as under:           "It is a principle of natural equity which must be      universally  applicable  that,  where  one  man  allows      another to  hold himself  out as the owner of an estate      and a  third person  purchases it,  for value, from the      apparent owner in the belief that      (1) (1872) I.A. 11 Bengal L.R. 46. 438      he is  the real  owner, the man who so allows the other      to hold  himself out  shall not be permitted to recover      upon his  secret title, unless he can overthrow that of      the purchaser  by showing  either that  he  had  direct      notice, or  something  which  amounts  to  constructive      notice, of  the  real  title;  or  that  there  existed      circumstances which  ought to  have  put  him  upon  an      inquiry  that,  if  prosecuted  would  have  led  to  a      discovery of it’      In this  case the  father of  the plaintiff  throughout acted in  relation to  others as  the owner  of the property

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though the plaintiff was the real owner of the property. The father of  the plaintiff executed agreement D-18 to sell the land to  defendant 1.  The transaction  was completed in the presence of  the plaintiff  and the consideration was put in the hands  of the  plaintiff. Plaintiff  would certainly  be estopped from  contesting the  validity of  the sale  on the ground that  the father had no authority to sell the land or on the  ground that  though  his  father  entered  into  the agreement Ext.  D-18, his  constituted attorney defendant 34 acted as a mere rubber stamp.      In this connection it would be very profitable to refer to a notice served by the plaintiff on defendant 1, Ext.D-21 dated 19th  December 1949.  Now, before  the true  impact of this notice  can be gauged, a few dates may be recalled. The Power of  Attorney  Ext.  P-1  was  executed  in  favour  of defendant 34  on 10th  April 1949.  Agreement Ext.  D-18 was entered  into  between  the  father  of  the  plaintiff  and defendant no.  1 on 14th February 1949. This would show that agreement D-18  was entered  into between  the father of the plaintiff and  defendant 1  prior to  the execution  of  the Power of  Attorney, Ext.  P-1. The  public notice cancelling the Power  of Attorney was issued on 25th October 1949. Now, notice Ext.  D-21 is dated 19th December 1449. Therefore, it clearly transpires  that notice  Ext. D-21 was issued by the plaintiff after he had developed a suspicion about the fraud alleged to  have been perpetrated by defendants 1 and 34 and after  cancelling   the  Power  of  Attorney  in  favour  of defendant no.  34. Yet  by this  notice Ext.  D-21 plaintiff called upon  defendant 1  to meet  him to purchase the lands set out  in the  notice if  he was  so  desirous,  otherwise plaintiff would sell the same to others. The lands described in the  notice clearly  exclude those  pieces of  lands sold under the  authority of Power. Of Attorney Ext. P-1. Does it stand to reason to believe that plaintiff who suspected that he was the victim of a fraud at the hands of defendant 1 and that he  had to  take steps  to cancel the Power of Attorney granted by him in favour of defendant 34 specifically at the instance of 439 defendant 1  would ever  invite him  to purchase  some other land ?  If  there was any substance in the case put forth by the plaintiff  that the  sale already completed by defendant 34 in  favour of defendant 1 pursuant to the agreement, Ext. D-18 executed  by the  father of  the plaintiff in favour of defendant 1  was not acceptable to him or was not binding on him he  would not  invite him  to purchase  other lands. The conduct of  the plaintiff  belies  his  suspicion,  and  the allegation of  fraud and  want of  authority is  clearly  an after thought.  Viewed from any angle, the contention of the plaintiff is without merits and must be rejected.      It was  next contended that the High Court was in error in granting  MP. 2762/61  permitting the heirs of defendants 8, 9  and 11  to produce  the sale  deeds which they did not produce in  the trial  Court and  after relying on the same, reversing the  decree of the trial Court. The High Court has given cogent  reasons for  granting CMP.  2762/61. Order 41, Rule  27,  C.P.C.  enables  the  appellate  Court  to  admit additional  evidence   in  the  circumstances  or  situation therein mentioned  one such  being where the appellate court requires any  document to  be produced  or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.  By a  catena of decisions of this Court, it is  well established that Order 41, Rule 27, C.P.C’. does not confer  a right  on  the  party  to  produce  additional evidence. But  if the  Court hearing the action requires any

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document so  as to  enable it  to pronounce judgment, it has the  jurisdiction   to  permit  additional  evidence  to  be produced. The  High Court  has given  cogent reasons  why it felt impelled  to permit production of registered sale deeds so as  to enable  it to pronounce judgment in the matter. If the High  Court considered the production of registered sale deeds essential  so as  to enable  it to pronounce judgment, there  is  no  reason  why  we  should  interfere  with  the discretionary power  properly exercised by the High Court in the interest  of justice. Even otherwise, the High Court was justified in  permitting additional  evidence to be produced when it  consisted of registered sale deeds. Such additional evidence has  to be  read as  part of the record. Once these registered sale  deeds are  taken into consideration, a part of the  decree of  the trial  Court granted in favour of the plaintiff awarding  him possession  of the  land on the only ground that  the sale  deeds in  respect of  those pieces of lands were  not produced,  could not  be maintained  and the High Court  rightly allowed the appeal of original defendant nos. 8, 9 and 11 and no exception can be taken to it.      We may  now turn to two contentions raised on behalf of the respondents. 440      The first  contention on  behalf of respondents is that the plaintiff  being a benamidar, he is not entitled to seek possession of the land on the basis of his title as full and absolute owner  of the  suit lands.  The High  Court in this connection has  not specifically  dealt with this contention though the trial Court raised a specific issue in respect of it and  answered it  in favour  of the  plaintiff’. The High Court has,  however, ob  served that  the plaintiff’s father was the real owner of the suit lands and he was managing the property although  the patta  was issued  in the name of his son, the plaintiff. The High Court then observed that Kazinm Yar Jung for the reason that he was an employee of the Nizam in order to avoid embarassment to himself nominally made the plaintiff, his  minor son,  the pattadar.  In the opinion of the High  Court this  is borne  out by  the fact  that after executing the  Power of  Attorney, Ext.  P-1  in  favour  of defendant 1,  he wrote  to  the  Tahsildar,  Medak  on  20th October 1949 that his son was a benamidar and that the lands may therefore  be transferred  in his  name. However,  after making these  observations the  High Court has not chosen to non-suit the  plaintiff on  the  ground  that  he  n  was  a benamidar-      Undoubtedly, Kazim  Yar Jung  was holding a high office in Nizam’s  Government It is rational to believe that he may have influenced  the decision of the Nizam to grant the land and that  he may  not have  taken the patta in his own name. The patta  may, therefore,  have been  grant ed in favour of his minor  son, the plaintiff. Does that make the plain tiff a benemidar  Section 82  of the  Indian  Trusts  Act,  1882, provides that  where property  is transferred  to one person for a  consideration paid or provided by another person, and it appears  that such  other person did not intend to pay or provide  such   consideration  for   the  benefit   of   the transferee, the  transferee must  hold the  property for the benefit of the person paying or providing the consideration. Now, there  is no  evidence to  show that  the patta was for consideration. It is said that there was a grant of land and it is not clear that it was meant to be a gift of land. Even if the Nizam in appreciation of the services rendered by the plaintiff’s father  granted the  land to  the plaintiff,  it could not  be said  that any  consideration flowed  from the father of  the plaintiff  so as  to  make  the  plaintiff  a

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benamidar. The  genesis of  the concept  of  benami  is  the consideration for  a transfer  must flow from one person and the transfer  is taken  in the  name of the other person and the consideration  so  flowing  for  the  transfer  was  not intended to  be a gift in favour of the person in whose name the transfer  is taken  All these  ingredients of benami are absent in  this case and, therefore, the contention that the plaintiff was a benamidar cannot be accepted. 441      lt was  also contended  that the  plaintiff came to the Court with  an   allegation that  defendant  1  induced  the plaintiff, his father and brother to execute a nominal Power of Attorney  in favour of defendant no. 34, and defendants 1 and 34  in collusion with each other defrauded the plaintiff his property.  It was  said that if defendants 1 and 34 were the  perpetrators   of  the   fraud,  the  plaintiff  having compromised with them and withdrawn the appeal against them, the appeal  would not  survive against  the rest.  There  is absolutely no  merit in  this contention.  The plaintiff may have valid  reasons for  entering  into  a  compromise  with defendants 1  and 34  who might have made good a part of the loss  suffered   by  the   plaintiff.  But  apart  from  the allegation of fraud, the suit was substantially based on the scope of  authority conferred  by Exts.  P-l and P-2 to sell lands and  the acquisition  of the  title. by the purchasers From the  attorney defendant 34 in exercise of the authority conferred by  Exts. P-l and P-2 and, therefore, a compromise with defendants 1 and 34 would not render the appeal against the rest of the defendants infructuous or untenable.      The third  contention was that the plaintiff left India and his  evidence having remained incomplete, the same could not be  read in  evidence. After  we explained  the relevant documents, we  are satisfied  that there  is no substance in this contention.      As all  the contentions  raised by  the appellant fail, the appeal fails and is dismissed with costs. N.V.K.                                    Appeal dismissed . 10-978SCI/78 442