judgement:
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. section 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 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. section 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 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.
Alternatively it was contended that if exhibit 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 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 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 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. vs 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. vs 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) at 177(2) ; 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 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.
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 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.
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.
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 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.
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.
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 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 vs 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 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.
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.
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 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 , 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 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 .

summary:
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. ^ 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 vs La Banque du Peuple, at 177, Modi & Co. vs Union of India, 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 authority given under exhibit P1 was only to manage the property and not to sell it.
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.
1 para 733; referred to.
(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 vs Macqueen, 1872 I.A. 11 Bengal LR 46; referred to.
(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 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 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]


judgement:
Civil Appeal No. 2302 of 1977.
Appeal by Special Leave from the Judgment and Order dated 6th December.
1976 of the Delhi High Court in Civil Revision No.247 of 1976.
Rameshwar Nath, for the Appellant.
G. L. Sanghi.
section section Ray, section R. Agarwal, Praveen Kumar and B. Mohan for the Respondent.
This appeal is by special leave by the landlord against; the judgment of the High Court of Delhi whereby it allowed a revision of the respondent tenant and set aside the order of eviction passed by the Rent Controller, Delhi, rejecting the application of the respondent seeking permission to contest the proceedings for eviction filed by tile appellants under section 14(A)(1) of the Delhi Rent Control Act.
412 The appellant, Shri B. N. Muttoo, Inspector General of Police, Leased the property No. F 9, East of Kailash, New Delhi, to the respondent from 15th September, 1972 at a monthly rent o.` Rs. 2,200/ exclusive of electricity and water charges.
The lease was for the use of the premises for residential and/or professional purposes only and not for commercial purposes.
The lease agreement was renewed from time to time and the respondent became a monthly tenant under the Delhi Rent Control Act, 1958.
On 18th July, 1974 the landlord filed a petition for eviction of the respondent on the grounds OF mis user, subletting and bona fide requirement.
The petition was registered as Suit No. 182 of 1974 and is still pending.
The first appellant, B. N. Muttoo, retired as Inspector General of Police on 30th November, 1975.
While in office he was occupying premises bearing No. C II/ 77 Moti Bagh I, New Delhi, allotted to him by the Government.
On 9th September, 1975 the Government took a decision that Government servants who own houses in the locality should vacate the Government accommodation allotted to them within 3 months from 1st October, 1975.
On 9th December, 1975 a notice was served on the first appellant by the Deputy Director (Admn.) stating that the Government by its Office Memorandum No. 12031(1)/ 74 Pol.
II dated 9th September 1975 required all Government officials who, own houses in Delhi and New Delhi and have also been allotted I` Government.
residence to vacate the Government residence before the stipulated date failing which penal rate of licence of market rate shall be charged besides necessary action to evict him from the Government residence.
On the same day the appellant filed the present Suit for eviction of the respondent.
On 16th January, 1976 the respondent applied 'or leave to defend.
On 10th March, 1976 the Rent Controller refused leave and decreed the suit filed by the landlord.
A revision petition was filed by the respondent before the High Court which allowed the revision and set aside the order of the Rent Controller and remanded the proceedings to the Rent Controller for disposal according to law.
Against the order of the High Court allowing the revision by the respondent the present appeal has been preferred to this Court by the landlord.
The question that arises in this appeal is whether the Rent Con troller was right in refusing leave to the respondent to defend the eviction petition filed by the landlord.
In order to appreciate the point that arises for consideration it is necessary to refer to the relevant provisions of the Delhi Rent Control Act.
Delhi Rent Control Act (Act 59 of 1958) came into force on 413 31st December, 1958.
By Chapter III the right of the landlord to evict the tenant was restricted.
Section 14 prohibited any order or decree for recovery of possession of any of the premises being made by any court in favour of a landlord except under certain circumstances.
The landlord was required to make an application to the Controller for recovery of the possession on one of the grounds mentioned in sub clauses (a) to (1) in section 14(1).
The provisions of section 14(1)(e) which are relevant may be referred to: "14.
(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or mote of the following grounds, namely: (a) X X X (b) X X X (c) X X X (d) X X X (e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence For himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation: Explanation the purposes of this clause "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes; By the Delhi Rent Control Act (Amendment) Ordinance (No. 24 of 1975), 1975 the Delhi Rent Control Act was amended.
the Ordinance was eventually replaced by the Delhi Rent Control (Amendment) Act No. 18 of 1976.
The Amending Act continued the provisions of the Ordinance but extended the summary procedure which was applicable to section 14(1)(e) to evictions on the ground set out in section 14A of the Act.
The Amending Act came into force on February 9, 1976 but by virtue of sub section (2) of section 1 it was 414 deemed to have come into force on 1st December, 1975 i.e. On the date on which the Ordinance came into force.
Section 14A conferred a right to recover immediate possession of premises to certain persons.
The amended section 14A(1) reads: "(1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him:" This section confers on a landlord who owns a residential accommodation.
in his own name or in the name of his wife or dependent child in the Union territory of Delhi and was in occupation of any residential premises allotted to him by the Central Government or any local authority and is required by any general or special order made by the Government or the authority to vacate such residential accommodation or in default to incur certain obligations on the ground that he owns a residential accommodation in Delhi either in his own name or in the name of his wife or dependent child, a right shall accrue to such landlord to recover immediate possession of any premises let out by him.
Apart from conferring rights under section 14A a summary procedure for trial of applications made under section 14(1)(e) and section 14A is provided under sections 25A, 25B and 25C. Section 25A provides that the provisions of Chapter IIIA which contains sections 25A, 25B and 25C and any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained else where in this Act or any other law for the time being in force.
The special procedure for disposal of application for eviction under section 14(1)(e) and section 14A is prescribed by section 25B.
The procedure envisaged is that when an application under section 14(1)(e) 415 or Section 14A is filed by the landlord the Controller shall issue summons in the prescribed form.
Sub section (4) to section 25B restricts the right of the tenant to defend by providing that the tenant shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller.
In default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.
Sub section (5) to section 25B states the conditions under which the Controller shall give leave to the tenant to contest the application.
It requires that the affidavit filed by the tenant should disclose such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub section (1) of section 14, or under section 14A. When once the leave is granted to the tenant to contest the application the Controller shall commence hearing of the application as early as practicable.
The introduction of section 14A became necessary as the Government took a decision on 9th September, 1975 that the Government servants who own houses in the Union territory of Delhi shall be required to vacate Government accommodation allotted to them within 3 months from 1st October, 1975.
If they fail to vacate the accommodation they were to be charged licence fee at market rates.
The Government servants who were owing houses in the Union territory of Delhi could not get possession of their residential accommodation.
It became necessary to confer on them the right to recover immediate possession of their premises and also to prescribe an expeditions procedure for achieving the object.
According to the procedure specified in section 25B it was made incumbent on the tenant to apply for and obtain leave to contest the application for eviction Coming to the facts of the case the Government took the decision to require the Government officers who have been allotted premises by the Government and who own their own houses in the area specified to vacate the premises allotted by the Government within 3 months from 1st October, 1975.
Notice of such intention was conveyed to be landlord on 9th December, 1975.
In the meantime on 30th November, 197 '; the officer retired from service.
Thus on the date 11 on which notice was served on him he had already retired.
The petition for eviction was also filed on 9th December, 1975 after the 416 officer retired.
The main contentions raised by the tenant in the petition for leave to contest were;(1) the landlord cannot invoke the provisions of section 25B(5) as he was not a Government servant on the date of the petition; (2) the landlord had already filed a petition for eviction which was registered as O.S. No. 182 of 1974 and was pending before the Additional Rent Controller.
As the eviction is sought on the same ground in the present petition it was submitted that this petition could not be entertained; (3) the premises which the respondent is occupying were let for the purpose of residential or professional purposes and therefore the landlord is not entitled to ask for eviction as the premises are not let for residential purposes.
The Rent Controller rejected all the contentions put forward by the respondent.
He held that the question as to whether the landlord was a Government servant or not on the date when the notice was received and on the date when he filed the petition is irrelevant so long as he satisfied the requirements laid down in section 14(1) of the Act.
on the second contention the Rent Controller found that the ground for eviction under section 14A is a new cause of action and different from the one that was raised in the previous petitions and hence the present petition is not barred.
On the third point the Rent Controller found that it is not necessary for an application under section 14(1) that the building should have been let for residential purposes as required under section 14(1) (c) and it is sufficient if the landlord requires the premises for residential accommodation.
The Rent Controller held that the grounds on which leave to resist an application can be granted are those that are specified in section 25B(5) alone.
On appeal the High Court allowed the revision by the tenant mainly on the ground that the application for eviction must fail on account of the admitted t`act that the landlord had retired from service on 30th November, 1975 before the Ordinance came into force and was on that account liable to vacate the premises independently of his owner ship of the premises in dispute.
The important question that arises for consideration is whether the landlord who retired from service on 30th November, 1975 before the Ordinance came into force could avail himself of the provisions of section 14A(1).
A reading of section 14A discloses that a right to recover immediate possession of premises accrues to certain persons if the requisite conditions are satisfied.
The conditions are: (1) the landlord must be in occupation of any residential premises allotted to him by the Central Government or any local authority; (2) such 417 landlord is required by a general or special order made by the Government or authority to vacate such residential accommodation or in default to incur certain obligations on the ground that he owns in the Union territory of Delhi a residential accommodation either in his on name or in the name of his wife or dependent child If the aforesaid conditions are satisfied a right shall accrue to such a landlord on and from the date of such order to recover immediate possession of any premises let out by him.
It may be noted that the section does not require that the person who is in occupation of the premises allotted by the Government should be a Government servant.
It is necessary that the person is required by the Government or authority to vacate such accommodation imposing certain consequences in the event of his not vacating.
The policy decision taken by the Government on 9th September, 1975 only related to Government servants who were in occupation of premises allotted to them by the Government.
If the Government servant had another house in the locality he was to vacate within 3 months from the 1st October, 1975.
This general order no doubt relates only to government servants.
After the decision was taken it was realized that some provision should be made to enable the persons in occupation of buildings allotted to them by the Government to get possession of the houses they own but have been let to tenants.
In order to enable them to get possession of the premises let by them expditiously section 14A(1) was enacted and the expeditious procedure under section 25 B was made applicable.
It may also be noted that the order served on the landlord on 9th December, 1975 mentions that all Government officials who own houses in Delhi and have also been allotted Government residence are to vacate Government accommodation.
the general circular dated 9th September, 1975 as well as the notice served on the landlord thus support the view that the intention of the Government was to enable only those Government servants who are in occupation of Government accommodation and who own houses to get immediate possession, though section 14A does not restrict the right to recover immediate possession to Government servants alone.
In these circumstances, the conclusions arrived at by the High Court that a Government servant who had retired before the date on which he had filed the application is not entitled to the benefits of section 14(1) is understandable.
This view was expressed by this Court in Nihal Chand vs Kalyan Chand Jain(1) wherein it was observed "There appears to be some force in the view taken by the High Court that the provision of section 14A(1) was not intended for Govern (1) ; at p. 190. 418 ment servant who have retired from Government service or who have been transferred outside Delhi .
" But this Court did not decide the issue because on the facts of the case it was of the view that the landlord was entitled to invoke the provisions of section 14A(1) notwithstanding the fact that he had retired from Government service with effect from 30th November, 1975.
In that case the notice was served on the appellant landlord on 30th September, 1975 which was before the date of retirement which was on 31st November ', 1975.
On the ground that the right to evict the tenant accrued to the landlord when he was in service it was held that he was entitled to the rights conferred under section 14A. In this case the notice was served on 9th December, 1975 and the officer had retired on 30th November, 1975.
On the reasoning in the above case the appellant will not be entitled to the relief.
The question therefore squarely arises in this case as to whether a Government servant who retired before the notice was served on him requiring to quit the Government accommodation is entitled to the benefit of section 14A(1).
It is not clear as to why the right to recover immediate possession is not confined to Government servants alone under section 14A.
It is clear that according to Government 's policy statement the intention was only to require the Government servants to vacate the premises allotted to them by the Government if they had their own houses in the area.
It cannot be said that it was by inadvertance that the Legislature mentioned persons instead of Government servants and made the section applicable to persons other than Government servants.
It is stated at the Bar that Government accommodation is provided not only to Government servants but also to Members of Parliament and other non officials who occupy important positions in public life.
The Court will not be justified in presuming that when the legislature used the word "persons" it meant only Government servants.
The rule as to construction of the statutes is well known and has been clearly laid down.
Craies on Statute Law (6th Ed.
p. 66) relying on Tasmania vs Common wealth(1) has stated the rule as follows: "The cardinal rule for the constructions of Acts of Parliament is that the should be construed according to the intention expressed in the Acts themselves.
The Court has to determine the intention as expressed by the words used.
If the words of statutes are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense.
The words themselves alone do in (1) ; 419 such a case best declare the intention of the lawgiver.
Taking into A account the object of the Act there could be no difficulty in giving the plain meaning to the word "person" as not being confined to Government servants for it is seen that accommodation has been provided by the Government not only to Government servants but to others also.
In the circumstances, the Court cannot help giving the plain and unambiguous meaning to the section.
It may be that the Retired Government servants as well as others who are in occupation of Government accommodation may become entitled to a special advantage, but the purpose of the legislation being to enable the Government to get possession of accommodation provided by them by enabling the allottee to get immediate possession of the residential accommodation owned but let by them, the Court will not be justified in giving a meaning which the words used will not warrant.
On this question therefore we find ourselves unable to concur with the view taken by he High Court.
The next question that arises is whether the rights conferred under section 14A(1) are available to premises that had been let for residential as well as professional purposes.
It is admitted that the premises were let for residential as well as professional purposes.
Section 14(1)(e) requires that in order to avail the provisions of section 14(1)(e) the premises should be "let for use as a residence '.
It has been held that when premises are let for residential as well as commercial or for residential and professional purposes the provisions of section 14(1)(e) will not apply.
This Court in Dr. Gopal Dass Verma vs Dr. section K. Bhardwaj and Anr.,(1) in construing section 13(1)(e) of the Delhi and Ajmer Rent Control Act, 1952 held that premises let for residential purposes but used by the tenant with the consent of the landlord incidentally for commercial professional or other purposes cease to be premises let for a residential purpose alone and as such the landlord would not be entitled to eject the tenant under section 13(1)(e) of the Act.
Section 13(1)(e) allowed a decree for ejectment to be passed if the Court is satisfied that the premises let for residential purposes are required bona fide by the landlord who is the owner of such premises for occupation as a residence tor himself or his family and that he has no other suitable accommodation.
On the facts of the case it was found that right from the commencement of the tenancy a substantial part of the premises was used by respondent I for his professional purpose, and they have also found that this has been done obviously with the consent of the landlord.
The Court held that the professional use of a substantial part Or the premises with (1) ; 420 the consent of the appellant clearly takes the case outside section 13(1)(e).
The view expressed in the above case was reiterated by this Court in Kartar Singh vs Chaman Lal & Ors.(1) On the facts it was found that the premises had been taken for residential cum business or professional purposes.
By the rent deed the owner inducted as a tenant Labha Mal Arora who was practising advocate.
Along with the rent deed a letter was written by the landlord to the tenant stating that he had no objection to the tenant having his professional office along with the residence.
After the tenant 's death in 1952 the premises were used only for residence by his sons and widow till 1957.
In August, 1957 the first respondent who qualified himself as a legal practitioner started having an office in the premises.
Another son also started practising as a lawyer in the same premises sometime later.
The landlord served a notice on the sons and widow of the deceased for requiring them to vacate the premises.
The court found two rooms were used by the original tenant as his office, one room by his clerk and the premises had been let for residence cum business purposes.
The plea that the tenant was only granted a licence to use the premises for residence cum profession which was personal to him and which came to an end on his death was not accepted.
The court agreed with the view expressed in Dr. Gopal Dass Verma 's case (supra) that a tenant could not be ejected under section 13(1)(h) because the tenancy of premises let out or used for residence and carrying on of profession could not be terminated merely by showing that the tenant had acquired a suitable residence.
the court rejected the contention that the tenant, Labha Mal Arora, had been merely given a permission or licence which was of a personal nature of his office.
It also was unable to find that any test of dominant intention was applied in Dr. Gopal Dass Verma 's case.
It is not necessary for us to go into the question whether the words "let for residential purposes" would exclude premises let predominantly for residential purposes with a licence to use an insignificant part for professional purposes such as lawyer 's or doctor 's consulting room.
The words used in section 14A are clearly different.
Section 14A contemplates the owning by the landlord in the Union territory of Delhi a residential accommodation.
If he owns a residential accommodation he has a right to recover immediately possession of any premises let out by him.
The emphasis is on residential accommodation.
If the premises are one intended for residential accommodation it will not make any difference if the premises are let for residential (1) 421 as well as other purposes.
Even though the residential accommodation is let for professional or commercial purposes the premises will not cease to be for residential accommodation.
It is common ground that the Premises let were put up under the Delhi Development Authority 's scheme for residential purposes.
The only plea was that though it was put up for residential purposes it was let for residential as well as for professional purposes.
The requirement in section 14(1)(e) that in order to enable the landlord to recover possession the premises ought to have been let for residential purposes is not there in section 14A(1).
In this view we agree with the High Court that it is not necessary in a petition for eviction under section 14A to satisfy that it was let for residential purposes only.
This view has been taken by this Court in Busching Schmitz Private Ltd. vs P. T. Menghani and Anr.
(1) The submission that as a previous application for possession by the landlord was pending this petition would not be permissible cannot be accepted as the grounds on which an application for possession is filed under section 14A(1) are different and based on special rights conferred on the class of persons who occupied Government accommodation.
The only other question that remains to be considered is the scope of the right to contest the suit, that is, on what grounds can the tenant seek leave to resist the suit filed by the landlord under section 14A(1).
The special procedure prescribed under section 25B is made applicable in cases where the landlord applies for recovery of possession on any o f the grounds specified in clause (c) of the Proviso to subsection (1) of section 14 or under section 14A. Sub section (5) of section 25B says that the Controller shall give leave to the tenant to contest it ' the affidavit filed by the tenant discloses such facts that would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in clause (e) of the proviso to sub section (1) of section 14 or section 14A. Under section 14(1)(e) the tenant may resist the application on the grounds specified namely that the premises are not let for residential purposes, that they are not required holla fide etc.
So far as the facts which would disentitle the landlord from obtaining an order under section 14A are concerned they call only be that the landlord is not a person in occupation OF residential premises allotted to him by the Central Government or that no general or special order has been made by the Government requiring him to vacate such residential accommodation (1) ; 422 on the terms specified in the section.
Leave to contest an application under section 14A(1) cannot be said to be analogous to the provisions, of grant of leave to defend as envisaged in the Civil Procedure Code.
Order XXXVII, Rule 2, sub rule (3) of the Code of Civil Procedure provides that the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend.
Sub rule (1) of Rule 3 of Order XXXVIII lays down the procedure to obtain leave.
Under the provisions leave to appear and defend the suit is to be given if the affidavit discloses such facts as would make incumbent on the holder to prove consideration or such other facts as the court may deem sufficient to support the application.
The scope of section 25B(5) is very restricted for leave to contest can only be given if the facts are such as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in section 14A. The learned counsel for the tenant submitted that the requirements of section 14(1)(e) should also be satisfied before the landlord could take advantage of the procedure provided under section 25B.
The learned counsel drew our attention to section 25C(1) and section 25C(2) and submitted that the reading of these two sub sections would indicate that before an eviction could be ordered under an application under section 14A(1) the requirements of sections 14(6) and (7) should be satisfied.
While section 14(1) enumerates the grounds on which the landlord can get a decree for recovery of possession against a tenant sub sections (2) to (11) place certain restrictions.
Subsection (2) provides restriction as to right for recovery of possession under section 14(1)(e).
Restriction regarding the right to recover possession under clause (e) is laid down ill sub sections (6) and (7) of section 14.
Section 14(6) states that where a landlord has acquired any premises by transfer no application for recovery of possession shall lie under sub section (1) on the ground specified in clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition.
Sub section (7) to section 14 lays down that where an order for the recovery of possession of any premises is made on the ground specified in clause (e) of the proviso to sub section (1), the landlord shall not be entitled to obtain possession thereof before The expiration of a period of six months from the date of the order.
Section 25C makes an exception to the requirement of section 14(6) to the effect that where a landlord is in occupation of any residential premises allotted to him by the Central Government or any local authority and who fulfils the requirements of section 14A(1) the requirement under section 14(6) that he would not be entitled to 423 possession unless a period of five years has elapsed from the date of his acquisition of the premises is not applicable In other words, he can straightway obtain possession without the impediment imposed under section 14(6).
Great stress was laid by the learned counsel for the tenant on section 25C(2) which provides that in the case of a landlord who, being a person of the category specified in sub section (1), has obtained, on the ground specified in clause (e) of the proviso to sub section (1) of section 14 or under section 14A, an order for the eviction of a tenant from any premises, the provisions of subsection (7) of section 14 shall have effect as if for the words "six months", occurring therein, the words "two months" were substituted The contention was that if section 14A(1) stood by itself and if a landlord applying under section 14A(1) would straightway get the possession after the tenant cannot contest the suit on the grounds specified in section 25B(5) there is no need for mentioning the provisions of section 14(1)(6) and section 14(1)(7) and prescribing a lesser period for a prescribed period under section 14(7).
In other words, the submission was that an application for possession under section 14A should also satisfy the requirements of section 14(1)(e).
The provisions of section 25B and 25C are applicable to both applications under section 14(1)(e) and under section 14A. Applications under section 14(1)(e) are governed by section 14(6) and section 14(7).
By introduction of section 25C the condition imposed in section 14(6) is varied.
The condition imposed under section 14(6) is made not applicable to persons who satisfy the requirements under section 14A meaning thereby that this restriction will be applicable only to an application under section 14(1)(e).
Section 25C(2) makes it clear that not only in the case of an application under section 14(1)(e) but also under section 14A the term of six months prescribed in section 14(7) is educed to two months.
The reason for specifying the period or two months in the case of section 14A is understandable for otherwise an applicant under section 14A would be entitled to possession immediately.
By prescribing a specific period of two months under sec ion 25C(2) it is made clear that even an applicant under section 14A would have to satisfy the conditions laid down by section 25C i.e. a period of two months should elapse before the landlord is entitled to obtain possession from the date of an order for recovery of possession.
This submission also fails.
In the result we hold that the landlord who retired before the date on which the notice to quit was given by the Government is also entitled to the benefits of section 14A and allow the appeal.

dataset_name: IN-Abs

summary:
Section 14 of the Delhi Rent Control Act, 1958 prohibits a court from making any order or decree in favour of a landlord for recovery of possession of any premises except under certain circumstances.
One of the grounds on which the landlord can make an application to the Rent Controller for recovery of possession is provided in section 14(1)(e) of the Act is that the premises let for residential purposes are required bonafide by the landlord for occupation a a residence for himself and that the landlord has no other reasonably suitable residential accommodation.
In September, 1975 the Central Government decided that Government servants who owned houses in the Union Territory of Delhi should, within three months from 1st October, 1975, vacate Government accommodation let out to them.
By the Delhi Rent Control Act (Amendment) Ordinance, 1975 the Act was amended and eventually the Amendment Act, 1976 replaced the Ordinance.
By a deeming provision the Act came into force on the date of the Ordinance i.e. 1st December, 1975.
Section 14A which was added by the amendment Act provides that a, land lord who, being a person in occupation of any residential premises allotted to him by the Central Government is required to vacate such residential accommodation on the ground that he owns in the Union Territory of Delhi a residential accommodation, a right shall accrue to such landlord to recover immediately possession of the premises let out by him.
Section 25B provides for special procedure for disposal of application for eviction under section 14(1) (e) and section 14A, Section 25B provides that when an application is filed by the landlord under either section 14(1)(e) or section 14A, the tenant shall not contest the prayer for eviction unless he files an affidavit and obtains leave from the Controller.
Sub section (5) requires that the affidavit filed by the tenant should disclose such facts as would disentitle the landlord from, obtaining, an order for the recovery of possession of the premises on the ground specified in section 14 (1)(e) or section 14A.
The appellant (landlord) let out his residential accommodation in New Delhi to the respondent (tenant).
The landlord was a Government servant who had been allotted Government accommodation in New Delhi.
On 9th December.
1975 the Government issued a notice to the landlord calling upon him to vacate Government accommodation allotted to him.
Tn the meantime the landlord retired from service on 30th November, ]975.
On 9th December, 1975 the landlord filed a petition for eviction of the tenant from his house.
The tenant raised three objections as to the maintainability of the petition: (i) that the landlord could not invoke the provisions of section 25B(5) because he was not a Government servant on the date of the petition; (ii) that since the ground on 8 978SCI/78 410 which eviction was sought in the petition was the same which had already been filed by the landlord and was pending before the Rent Controller, the petition could not be entertained, and (iii) that the premises occupied by him were let out for residential or professional purposes and therefore the landlord was not entitled to ask for eviction as the premises were not let for residential purposes alone.
The Rent Controller rejected all the contentions and refused leave to the tenant to defend the landlord 's eviction petition.
He held that (i) the question whether the landlord was a Government servant or not on the date when the notice was received and on the date when he filed a petition was irrelevant so long as he satisfied the requirements laid down in section 14(1), (ii) the ground for eviction under section 14A was a new cause of action and different from the one raised in the previous petition and, therefore the petition was not barred, (iii) it was not necessary for an application under section 14(1) that the building should have been let for residential purposes as required under section 14(1) (e), it is sufficient if the landlord required the premises for residential accommodation .
Allowing the tenant 's revision, the High Court held that since the landlord had retired from service On 30th November, 1975 before the Ordinance came into force, the tenant was not liable to vacate the premises independently of his ownership in the Premises in dispute.
Allowing the appeal.
^ HELD: 1 (a) Section 14A does not require that the person who was in, occupation of the premises allotted by the Government should be a Government servant.
The policy decision of 9th September.
1975 related only to Government servants who were in occupation of premises allotted to them by the Government.
But later the Government seemed to have realised that some provision should be made to get possession of the premises let to persons other than Government servants and who owned their own houses in Delhi and whose premises had been let out to tenants.
Although the circular dated 9th September, 1975 as well as the notice served by the Government on the landlord support the view that the intention of the Government was to enable only those Government servants who were in occupation of Government accommodation and who owned houses to get immediate possession .
section 14A does not restrict the right to recover immediate possession to Government servants alone.
Therefore, taking into account the object of the Act, the meaning of the word "person" cannot be confined to Government servants because Government accommodation was provided not only to Government servants but to others as well.
[417C F] Nihal Chand vs Kalyan Chand lain.
; at p. 190, referred to.
(b) It is not necessary in a petition for eviction under section 14A to specify that the premises were let for residential purpose only.
The words used in section 14A are clearly different.
This section contemplates the owning by the landlord in Delhi of a residential accommodation.
If he owns a residential accommodation he had the right to recover immediately possession of any premises let out by him.
If the premises were one intended for residential accommodation it would not make any difference if the premises were let for residential as well 411 as other purposes.
Evendif the residential accommodation was let for professional or commercial purposes, the premises would not cease to be for residential accommodation.
Moreover the requirement in section 14(1)(e) that to enable the landlord to recover possession the premises ought to have been let for residential purposes is not found in section 14A(1).
[421A C] Busching Schmitz Private Ltd. vs P. T. Mengham & Anr. ; , referred to.
The submission that as a previous application for possession by the land lord was pending, a petition under section 14A would not be permissible has no force because the grounds on which the application for possession was file under section 14A(1) Are different and ale based on special rights conferred on the class of persons who occupied Government accommodation.
[421D] (a) The scope of section 25B is very restricted, for leave to contest can only be given if the facts are such as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in section 14A. Leave to contest an application under section 14A(1) cannot be said to be analogous to the provisions of grant of leave to defend envisaged in the C.P.C. [422C & A] (b) The provisions of section 25B and section 25C are applicable to both applications under section 14(1)(e) and under s 14A. By the introduction of section 25C the condition imposed in section 14(6) is varied.
The condition imposed under section 14(6) is made not applicable to persons who satisfy the requirements under section 14A meaning thereby that this restriction will be applicable only to an application under section 14(1)(e).
Section 25C(2) makes it clear that not only in the case of an application under section 14(1)(e) but also under section 14A the term of six months prescribed in section 14(7) is reduced to two months.
By prescribing a specific period of two months under section 25C(2) it is made clear that even an applicant under section 14A would have to satisfy the conditions laid down by s.25C, that is, period of two months should elapse before the landlord is ' entitled to obtain possession from the date of an order for recovery of possession.
[423D G]