J.V.GUPTA , J. - (1.) THIS is Defendants' second appeal against whom the Plaintiffs' suit was partially decreed by the trial Court, but decreed in toto by the lower appellate Court
(2.) THE brief facts of the case which are not in dispute are. that the Plaintiffs -respondents Nos. 1 to 3, were the owners of the land measuring 330 kanals 18 marlas situated in village Tohana, Tahsil and District Hissar. They executed the agreement dated July 15,1963, Exhibit DW 1/1, to sell this land in favour of Ram Narain, Defendant -appellant No. 2 and received Rs. 41,000/ - as the sale consideration. The possession of the land, in dispute, was also given and he was given the option to get the sale deed registered either in his name or in the name of any other person of his choice at any time he desired. On the same day, a registered power of attorney was also executed in the name of the said Ram Narain by them. He was authorised to sell, mortgage or to alienate the suit land in his own favour or in favour of anybody else. He was also authorised to conduct any litigation as regards that land on their behalf It was also provided therein that the power of attorney could not be revoked till the land had been alienated or sold. This power of attorney was cancelled by them on June 17,1965, Exhibit P.W. 5/1, and intimation to this effect was given to Ram Narain, Defendant -appellant. On November 24, 1965, Romesh Mohan, Defendant -appellant, filed the suit against the Plaintiffs Respondents and Jagdish Chand, on the allegations that he was the owner in possession of the suit land; that the Plaintiffs -respondents had no right to deny his title and that they should be restrained from interfering with the enjoyment of his proprietary rights and possession thereof. They were sued through their mukhtiar, Ram Narain, Defendant -appellant. The Defendant -appellant appeared in the Court on November, 25, 1965, and admitted the claim of Romesh Mohan, Defendant -appellant. On the basis of the statement made by mukhtiar Ram Narian, Defendant -appellant Romesh Mohan, Defendant Appellant's suit was decreed by the Additional Subordinate Judge vide order dated November 25, 1965. By the present suit, the Plaintiffs wanted to get the said decree set aside and as a consequential relief, they also sought possession of the suit land. In the plaint, the Plaintiffs did not make any mention of the agreement to sell executed by them in favour of Ram Narain, Defendant -appellant On the other hand, they pleaded that Defendant -appellant Ram Narain was given possession of the land, in dispute only to manage it on their behalf and to realize its rent etc. Since he started mismanaging the land and misappropriating its proceeds to his own use, they cancelled the power of attorney executed by them in his favour of June 17, 1965, Exhibit P.W. 5/1. It was further alleged that the Defendant Appellant had no right to concede the claim of Romesh Mohan, Defendant -appellant on their behalf in the suit filed by him against them. It was further alleged that on the date when Ram Narain filed the written statement, i. e., November 25, 1965, he was no longer their attorney and, therefore, he was incompetent to admit the claim of Romesh Mohan, Defendant -appellant, on their behalf. They further pleaded that the decree obtained by the Defendant -appellant was based on fraud and his collusion with Ram Niraiu, Defendant -appellant and, thus, not binding upon them. The Defendants -appellants have filed their separate written statements. They denied the Plaintiff claim as laid in the plaint it was pleaded that Romesh Mohan Defendant -appellant, was the owner in possession of the suit land and that the Plaintiffs had no right to dispossess him. It was further pleaded that the total sale consideration of Rs 41,000/ - was paid to the Plaintiffs and that the possession of the suit land was delivered to the Defendants as the owners. According to the Defendants, the land, in dispute, had been purchased for the benefit of Defendant Appellant Romesh Mohan whereas Ram Narain, Defendant Appellant acted only as a benamidar . Thus, it was pleaded that the Plaintiffs had no right to cancel the irrevocable power of attorney executed by them in favour of Ram Narain, Defendant Appellant, it was further pleaded that Ram Narain, Defendant -appellant, conceded the claim of Romesh Mohan, Defendant Appellant in the suit filed by the latter on the basis of the instructions given to him by the Plaintiffs. It was denied that the decree dated November 25, 1965 was based on fraud or collusion as alleged. On the pleading of the parties, the trial Court framed the following issues: 1. whether there is any unauthorised amendment of the plaint ? If so, which is that portion and to what effect ? 2. whether the suit is not maintainable in the present form ? 3. whether the Plaintiffs have got the locus standi to institute the present suit ? 4. Whether the decree dated November 25, 1965, In suit No. 356 of 1965, has been obtained by the Defendants by fraud, mis -representation and collusion and is illegal and not binding upon the Plaintiffs ? 5. whether the Plaintiffs are estopped from instituting the present suit by their conduct and acts ? 6. f issue No. 2 is not proved, whether Defendant No. 1 is the owner in possession of the land which constitutes the subject -matter of the decree dated November 25, 1965, for consideration ? 7. If the Plaintiffs succeed in their suit, whether the Defendants are entitled to any amount by way of improvements and additions as alleged in the written statement ? If so, to what amount ? 8 Relief. On the most material issue No. 4, the trial Court recorded the finding in the following terms: The Plaintiff could not tell specifically as to since when Romesh Mohan has been in possession of the lard, in dispute; perhaps Ram Narain gave possession of the land, in dispute, to Romesh Mohan some time after the execution of the agreement of sale and since then, he has been in its possession There is nothing on the record to disbelieve the statements of Ram Narain and Romesh Mohan, Defendants, that Romesh Mohan, was, in fact in possession of the land, in dispute, at the time of the decree dated November 25, 1965, and even earlier. Therefore no fraud or misrepresentation was practiced by Ram Narain in admitting Romesh Mohan to be in possession of the land, in dispute, on the date of the decree although as held above, he was not its owner at that time. Therefore, the decree dated November 25, 1965, is not binding on the Plaintiffs only to the extent as it relates to the declaration of ownership in favour of Romesh Mohan. The rest of the decree being based on facts is valid and binding upon the Plaintiffs. The issue is decided accordingly. Under issue No. 6, the trial Court found that the Plaintiffs were debarred from claiming the possession of the suit land from Ram Narain, Defendant -appellant, since they had given the possession thereof to him in part performance of the agreement to sell after the receipt of the sale consideration. Ultimately, the trial Court passed the decree in favour of the Plaintiffs and against the Defendants to the effect that the decree dated November 25, 1965, passed by the Subordinate Judge, Hissar, in civil suit No. 365 of 1965, declaring Romesh Mohan, Defendant -appellant to be the owner of the land in dispute, was illegal and not binding upon them but their suit for possession thereof was dismissed in view of the finding under issue No. 6. Dissatisfied with the same, both the parties, filed separate appeals. The lower appellate Court dismissed the appeal filed on behalf of the Defendants, but accepted the one filed on behalf of the Plaintiffs. Accordingly, the judgment and decree of the trial Court was modified and the Plaintiffs were granted the decree for declaration as well as for possession as claimed in the plaint. Dissatisfied with the same, the Defendants have come up in second appeal to this Court.
(3.) AS stated earlier, the facts no more disputed now are that the Plaintiffs executed the agreement to sell, Exhibit D. W /1 and received the entire sale consideration of Rs. 41,000/ - and delivered possession of the suit land in pursuance thereof to Ram Narain, Defendant -appellant. On the same day, they also executed., a power of attorney in favour of Ram Narain, Defendant -appellant, Exhibit p. W. 5/3, which was duly registered, authorising him to manage the property and to get it transferred either in his own name or in the name of any person of his choice. It was specifically provided therein that the said power of attorney was irrevocable on the part of the Plaintiffs till the land was sold. In view of these facts, the controversy in this appeal is centred around the question whether the power of attorney, Exhibit P.W. 5/3, was irrevocable and, therefore, in spite of its revocation on June 17, 1965, Exhibit PW 5/1, Ram Narain, Defendant No. 2, still continued to be an agent of the Plaintiffs and as such, the decree suffered by him on behalf of the Plaintiffs in the suit filed by Romesh Mohan, Defendant -appellant, was valid and whether the Plaintiffs having parted with the possession of the suit land in part performance of the agreement to sell and having received the total sale price were still entitled to claim the possession back simply because no regular sale deed was executed and registered in favour of either of the Defendants. The main contention raised on behalf of the Appellants is that the power of attorney, Exhibit P.W. 5/3, was irrevocable on account of the following reasons: (i) because of the agreement to this effect itself between the parties when it was agreed that it was irrevocable; and (ii) in view of the provisions of Section 202 of the Indian Contract Act, which reads: Where the agent has himself an interest in the property which forms the subject -matter of the agency, the agency cannot, in the absence of an express' contract, be terminated to the prejudice of such interest. Thus argued the Learned Counsel that the provisions, of Section 202 of the Contract Act are applicable to the transfer of the immovable property under the Transfer of Property Act (hereafter called the Act) in view of the provisions of Section 4 of the Act, which read: The chapters and sections of this Act which relate to contracts snail be taken as part of the Indian Contract Act, 1872. and Sections 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908. According to the Learned Counsel for the Plaintiffs -respondents, no interest was created in the property agreed to be sold by merely executing the agreement Exhibit D W. 1/1, in favors of Ram Narain, Defendant, because Section 54 of the Act, inter alia provides that a contract for the sale of immovable property is a contract; that a sale of such property shall take place on terms settled between the parties and that it does not, of itself, create any interest in, or change on, such property, and, therefore, the provisions of Section 202 of the Contract Act, (as reproduced above), were not attracted in the present case. On the other hand, the argument raised on behalf of the Appellants is that the agreement 'of itself' may not create any interest in the property, but in the present case, on the facts admitted, interest was created in the suit property when its possession was delivered and the total sale price was received in pursuance of the agreement. I find force in this contention. In a somewhat similar situation, it was observed in Rabindra Nath v. Harendra Kumar : A.I. R. 1956 Cal. 462, that the answer to such question depends on the nature of the agreement for sale in each case. The language of Section 54 emphasises that of itself a contract for sale does not create any interest or charge on the property. But very often a contract for sale does not stand by itself where there is a part payment of the purchase price or payment of what is called the earnest money. In that event Section 55 (6) (b) of the Act, would be attracted and it, will be treated as though the ownership of the property had passed and there is a charge for part of the purchase money paid.'" In the present case, the agreement. Exhibit D.W. 1/1, was not a mere agreement to sell, but more than that because practically, the transaction, was complete in all respects except the execution of the regular sale deed and the registration thereof. Thus, interest was created in the property under the agreement and the provisions of Section 202 of the Contract Act are applicable to the facts of the present case. Moreover the words, "an interest in the property which forms the subject -matter of the agency" occurring in Section 202 of the Contract Act, are of wide amplitude than the words, "interest in or charge on, such property," in Section 54 of the Act. It is true that the mere execution of the agreement for sale without doing anything more will not create any interest in the property to be sold, but where the vendor has received the sale price and in pursuance of the agreement to sell possession there of has been delivered to the prospective vendee, then it could not be successfully argued on the basis of Section 54 of the Act that no interest was created in the property. The words, 'of itself in Section 54 of the Act, are very material to reach the right conclusion in a given case. Thus, on the facts of the present case, the irresistible conclusion is that in view of the provisions of Section 202 of the Contract Act, as well as because of the agreement itself the power of attorney, Exhibit, P.W. 5/3, was irrevocable. Ram Narain, Defendant Appellant continued to be the agent of the Plaintiffs -respondents in spite of any cancellation of the power of attorney, Exhibit P.W. 5/3. Thus, the decree suffered by Ram Narain, on behalf of the Plaintiffs in the suit filed on behalf of Romesh Mohan, Defendant -appellant, was binding on them. In any case, it could not be held to be invalid or to have been obtained by fraud or misrepresentation as alleged in the plaint. In view of the said finding, the second limb of the question formulated above, does not arise. However, independent of the power of attorney, and the said decree the Defendants are entitled to protect their possession of the suit land which they got in performance of the agreement on payment of the entire sale price. There was nothing more to be done in furtherance of the agreement, Exhibit P.W. 5/3, on the part of the vendee as he had paid the whole sale price and had taken possession of the suit land. It was for the Plaintiffs to execute the regular sale deed in favour of Ram Narain, Defendant -appellant, or in favour of any other person he may so choose This, the Plaintiffs failed to do in spite of the telegram. Exhibit DW 3. Not only that, in the present case, the Plaintiffs nowhere pleaded that they were ready and willing to perform their part of the agreement; rather they denied the execution of the agreement in the first instance and also the receipt of the sale price of Rs 41,000/ -. It was only during the trial that on account of the overwhelming evidence led on behalf of the Defendants, the Plaintiffs had to admit the execution of the agreement to sell as well as the receipt of the sale price by them. From the evidence, of the Defendants, the suit by Romesh Mohan, Defendant -appellant, was filed at the instance of the Plaintiffs in order to get the necessary transfer made by way of the consent decree. However, it mayor may not be so, but it is immaterial for the purposes of the present controversy Ram Narain, Defendant -appellant, in order to safeguard his interest and to debar the Plaintiffs from doing any mischief, in future, after receiving the sale price, also got the irrevocable power of attorney in his favour As observed earlier, the Plaintiffs never pleaded any such agreement or admitted the receipt of any sale price, but filed the simple suit for the cancellation of the decree on the basis of fraud and collusion etc. As held earlier, the question of any fraud etc. did not arise because the Plaintiffs had already washed off their hands from the land, in dispute, by receiving the entire sale price and handing over its possession besides executing the irrevocable power of attorney in favour of Ram Narain, Defendant -appellant. The equitable considerations as embodied in Section 53 -A of the Act, are fully applicable to the facts of the present case. In a similar situation, it was held in Venkatesh v. Mallappa A.I.R. 1922 Bom. 9 (2), that the Plaintiff who sells an immovable property to Defendant, cannot claim possession from Defendant -vendee who has paid the purchase money and has been all along in possession, though no sale -deed has been executed. The equitable principles which should be applied to such facts are perfectly clear. Similarly, in Maneklal v. H.J. Ginwalla & Sans : A.I. R. 1950 S.C. 1, it was held: Where in an action to eject a lessee on the ground that he had no registered deed of lease executed in his favour the Defendant lessee takes the plea of part performance and proves that there was a written and signed contract of lease in his favour and that he had taken possession in accordance with the terms of the agreement and had built a factory on the land and also that he was paying tent to the Plaintiffs in accordance with that agreement the Defendant is entitled to retain possession in spite of an absence of the registered deed. The Learned Counsel for the Appellants also strenuously relied upon the Full Bench judgment of the Lahore High Court in Milkha Singh v. Mst. Shankari A.I. R 1947 Lah. 1, wherein the Court by majority held that Section 53 -A of the Act, did not, in terms, apply to Punjab, but the principles embodied therein applied. It was further held, - Section 53 -A is based on the equitable principles which were previously applicable to the whole of India, including the Province of the Punjab and even after the enactment of that section which is not applicable to the Punjab the principles embodied therein are applicable to the Punjab and therefore the position in the Punjab in respect of the defence of part performance is exactly the same as in the Provinces where the Transfer of Property Act is in force However, the argument raised on behalf of the Plaintiffs -respondents was that the provisions of Section 53 -A of the Act were not applicable to the State of Punjab and that the equitable principles embodied therein could not be invoked in view of the proviso to Section 49 of the Indian Registration Act, which reads as follows: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53 -A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be affected by registered instrument. Thus, argued the Learned Counsel, the Full Bench judgment of the Lahore High Court in Milkha Singh's case (supra), required re -consideration as it goes contrary to the statutory provisions of Section 49 of the Indian Registration Act. According to the Learned Counsel, equitable principles hold the field only if there is no specific statutory bar in invoking the principles. However, in the present case, I am of the considered opinion that Section 49 of the Indian Registration Act, is not at all applicable, because there was no document which required registration and could be used under the proviso to Section 49 of the Indian Registration Act, for a collateral purpose or as evidence of part performance of a contract for the purposes of Section 53 -A of the Act Admittedly, the agreement to sell, Exhibit D.W. 1/1 did not require registration and as such, the question of the applicability of Section 49, Indian Registration Act, as contended on behalf of the Plaintiffs -respondents did not arise Moreover, it is always to be born in mind that while administering justice, equity always plays an important part and the Courts cannot lose sight of the equities and, thus, help a wrongdoer on mere technicalities. There is seldom any conflict between equity and statutory law because the law aims at securing justice and, therefore, the Courts dispense justice to the party in whose favour justice lies though in accordance with law.;