LE Correspondent

New Delhi, April 4, 2022: It is not always necessary for a plaintiff in a suit for partition to seek cancellation of the alienations, the Supreme Court has held while reiterating that the Power of Attorney must “expressly authorise” an agent to execute a sale deed.

The Apex Court was hearing an appeal — pertaining to a suit for partition having been decreed by the trial court but reversed by the High Court — filed by a woman seeking partition and separate possession of her half share in the suit property that was sold by her sister in whose favour the appellant had executed a general Power of Attorney. 

A Bench of Justices Hemant Gupta and V Ramasubramanian, while setting aside the impugned judgement of the High Court and restoring the preliminary decree passed by the trial court, held that: “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, the bench said. “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,” it said. 

“Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations,” the Apex Court held.

In the case at hand, after the death of the appellant’s father, the suit property originally belonging to him devolved upon his two daughters, i.e., the appellant and her sister.

The appellant executed a general Power of Attorney (registered) in 1971 in favour of her sister. However, the said power was cancelled in 1985. But in the meantime, the appellant’s sister was found to have executed four different documents in favour of certain third parties, assigning/releasing some properties. Therefore, the appellant filed two suits against the assignees/releasees. Though a preliminary decree was passed in the second suit in 1989, the appellant came to know later that the assignees/releasees had sold the property to the respondent herein.

Therefore, the appellant filed yet another suit in 1989, seeking partition and separate possession of her half share in the suit property. The trial court granted a preliminary decree in favour of the appellant. However, the regular appeal filed by the respondent herein was allowed by a Division Bench of the High Court by the judgment and decree impugned in this appeal. Therefore, the appellant came up with the above appeal before the Supreme Court.

After perusing the orders of the trial court and the High Court and hearing the arguments of the respondent’s counsel, the Apex Court observed that the deed of Power of Attorney executed by the appellant in 1971 in favour of her sister contained provisions empowering the agent: (i) to grant leases under Clause 15; (ii) to make borrowals if and when necessary with or without security, and to execute and if necessary, register all documents in connection therewith, under Clause 20; and (iii) to sign in her own name, documents for and on behalf of the appellant and present them for registration, under Clause 22 of the deed of Power of Attorney. “But there was no clause in the deed authorizing and empowering the agent to sell the property,” the Bench noted.

The Top Court relied on its earlier judgement in Church Of Christ Charitable Trust & Edu v. M/s. Ponniamman Educationa Trust to reiterate that “the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority”.

“It is a fundamental principle of the law of transfer of property that no one can confer a better title than what he himself has (Nemo dat quod non habet). The appellants sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the 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,” the Bench held.

“Therefore, the appeal is allowed, the impugned judgment of the High Court is set aside and the Judgment and preliminary decree passed by the trial Court are restored,” the Top Court said.

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