Khan Mohammad Ameer and another Vs. Atiqur Rahman and others 2017 (2) LNJ 99

Case No: First Appeal No. 81 of 2015

Judge: Mohammad Ullah. J.

Court: High Court Division,

Advocate: Mr. Abdul Wadud Bhuiyan, Mr. A.J. Mohammad Ali,

Citation: 2017 (2) LNJ 99

Case Year: 2017

Appellant: Khan Mohammad Ameer and another

Respondent: Atiqur Rahman and others

Subject: Law of Contract

Delivery Date: 2017-09-18

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Quazi Reza-Ul Hoque, J

And

Mohammad Ullah, J

Judgment on

04.04.2017

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Khan Mohammad Ameer and another

.. Appellants

-Versus-

Atiqur Rahman and others

... Respondents

Contract Act (IX of 1872)

Sections 202 and 203

In the instant case from the deed of revocation of power of attorney, it appears that the principal revoked it assigning the reasons amongst others to the effect that- “as the purpose for which the attorney was appointed has been exhausted and in the context of the present unavailable circumstances, we have decided to handle the mater directly and by ourselves.” Except the power of attorney executed couple with interest all other power may be revoked at any time by the principal.  From the recital of the power of attorney, it does not appear that the agent herself has an interest in the property and hence such agency can be revoked unilaterally without prejudice of such interest.                                             . . .(10)

Contract Act (IX of 1872)

Sections 202 and 203

It appears that the provision for giving notice before cancellation of power of attorney has been incorporated in the new enactment of the Powers of Attorney Act of 2012 which was not expressly provided in repealed Act of 1982 thereof. It is not imperative to settle that the notice was served or not before cancellation of the power as we are of the opinion that the power of attorney in question is not a power coupled with interest and hence the same is revocable. Furthermore, since the power of attorney was revoked on 27.09.2009 before coming into force of new enactment of 2012, as such, giving notice or no notice  has not debarred the principal to revoke it as the same appears do not have coupled with interest of the agent.       . . . (10)

67 DLR (AD) 240; AIR 1969 (SC) 73; 16 BLD 519 and BLT (AD) 1 ref.

Mr. Abdul Wadud Bhuiyan with

Mr. Qumrul Haque Siddique and

Mr. Abdul Barek Chowdhury, Advocates

. . . For the appellants

Mr. A.J. Mohammad Ali with

Mr. Md. Nurul Amin, Advocates

…For the respondents

JUDGMENT

Mohammad Ullah, J: This First Appeal has been sent from the office of the Honourable Chief Justice for disposal by this Division Bench by order dated 12.02.2017. The above numbered First Appeal has been preferred by the plaintiff against the judgment and decree dated 20.11.2014 passed by the learned Joint District Judge, 1st Court, Dhaka in Title Suit No. 94 of 2011 dismissing the suit.

2.            The facts leading to the disposal of the appeal is as follows:

         The appellant as plaintiff instituted Title Suit No. 94 of 2011 in the 1st Court of Joint District Judge, Dhaka against the defendants-respondents with a prayer that the power of attorney No. 11363 dated 04.08.1999 is still in force and the deed of cancellation of power of attorney No. 8427 dated 29.07.2010 is illegal, void, unauthorized and without jurisdiction. The case of the plaintiff-appellant is that the suit land originally belonged to one Matiur Rahman who got the same as perpetual lease on 13.03.1961 for 99 years from the then Dhaka Improvement Trust (DIT) now RAJUK. Motiur Rahman while in possession transferred the same in favour of his full brother Habibur Rahman on 31.03.1969 by a registered deed. Habibur Rahman while in peaceful possession died leaving four daughters, namely, Nabila Rahman, Nazia Rahman, Saddat Rahman and Sadia Rahman, only son Md. Atiqur Rahman and wife Meherunnessa to inherit him. While aforesaid heirs of Habibur Rahman having been in peaceful possession they mutated their names in the office of RAJUK on 19.01.1989. The heirs of Habibur Rahman entered into an unregistered deed of agreement for sale of the property with the plaintiff No.1 on 07.07.1987 fixing the price for an amount of Taka 70,00,000/- on receiving  a sum of Taka 15,00,000/-. Thereafter the defendants No. 1-5 and their mother Meherunnessa received a total sum of Taka 39,50,000/- from the plaintiff No. 1 on different dates by cash, pay order and cheques. The said amount of money has been taken by the defendants by signing on the reverse side of the bainapatra. The defendants in that way took an amount of Taka 54,50,000/- out of total fixed price of Taka 70 lac. The mother of the defendants Meherunnessa died leaving them as legal heirs and successors. The defendants No. 1-5 executed and registered second deed of agreement for sale No. 11363 dated 04.08.1999 with the plaintiff No.1 acknowledging the receipt of Taka 54,50,000/- and at the time of execution of the second bainapatra, the defendants took an amount of Taka 1 lac only. Thereby in total they received Taka 55,50,000/- fixing  the date for performance of second bainapatra within five years and the parties also further agreed that the period of performance  of second bainapatra to be extended with the consent of both the parties. On the same day that is on 04.08.1999, the defendants No. 1-5 also executed and registered power of attorney No. 11634 nominating the plaintiff No. 2, the wife of plaintiff No. 1 Roksona Ameer giving certain powers in order to manage and control the property including the sale thereof. The defendants No. 1-5 also received an amount of Taka 19,42,500/- on different dates from 04.08.1999 to 10.03.2007 from the plaintiff No. 1 by signing at the reverse page of bainapatra as well as in some vouchers of the company of the plaintiff No. 1. One Niamat Ali Sheikh being the tenant of defendants No. 1-5 filed Title Suit No. 210 of 1986 for specific performance of contract in the 1st  Court of Joint District Judge, Dhaka which was subsequently transferred  in the Court of Arth Rin Adalat and Joint District Judge, 3rd Court, Dhaka and renumbered as Title Suit No. 1 of 2000(G) in which  RAJUK was a party and the plaintiff of the aforesaid suit obtained an order of injunction on 08.01.2001 restraining the defendants No. 2-6 from transferring the property to anybody else. While the defendants No. 1-5 and their mother Meherunnessa filed Title Suit No. 61 of 1989 in the 1st Court of Joint District Judge, Dhaka which was transferred in the Court of Artha Rin Adalat and Joint District Judge, 3rd Court, Dhaka and renumbered as Title Suit No. 2 of 2000 (G) for eviction of said Niamat Ali who was the tenant of the former. The plaintiff No. 1 of the instant suit Khan Md. Ameer was made a party to the suit for specific performance of contract filed by Niamat Ali Sheikh as defendant No. 10 on 30.11.1999. The power of attorney holder Roksona Ameer that is the wife of Khan Md. Ameer was also made a party to that suit as defendant No. 11 on 02.10.2001. The defendant No. 1 Atiqur Rahman himself filed an application for adding Roksona Ameer in the suit. After being added in the suit against Niamat Ali Sheikh,   Roksona Ameer filed vokalatnama, engaged lawyer for conducting the suit and spent money from time to time. Both the suits that is Title Suit No. 1 of 2000 (G) and Title Suit No. 2 of 2000(G) were heard analogously and the Title Suit No. 1 of 2000(G) was dismissed and the Title Suit No. 2 of 2000(G) was decreed. Against which Niamat Ali Sheikh filed First Appeal No. 194 of 2003 and First Appeal No. 303 of 2003 before this Court in which the plaintiff No. 1 was the defendant No. 9 and the plaintiff No. 2 was the defendant No. 10 and the RAJUK was the defendant No. 7. Both the said appeals were heard analogously and remitted to the trial Court on remand. The plaintiff No. 2 on the basis of power of attorney filed C.P. No. 406 of 2008 and C. P. No. 404 of 2008 and the Appellate Division granted leave on 11.03.2009 and the plaintiff No. 2 filed Civil Appeal No. 201 of 2009 and Civil Appeal No. 202 of 2009. In both the suits RAJUK was a party and there was an order of injunction against the RAJUK refraining it from giving sale permission in favour of the plaintiff No.2. The plaintiff No. 2 on the request of defendants No. 1-5  rescheduled, the price of the land for an amount of Taka 2,20,00,000/- and the defendants took an amount of Taka 30,00,000/-  executing  another agreement for sale on 04.10.2009 that is called third bainapatra. Thereafter on 19.11.2009, the plaintiff No. 2 as attorney of the defendants No. 1-5 executed another agreement for sale with the plaintiff No. 1 fixing the earlier sale price of Taka 2,20,00,000/-. The plaintiff No. 2 took an amount of Taka 1,19,80,000/- on 19.11.2009 from the plaintiff No. 1 by executing and registering  the deed of agreement for sale No. 10237 dated 19.11.2009. In this way, the defendants No. 1-5, their mother, and their attorney took an amount of total Taka 2,19,80,000/- from the plaintiff  No. 1. The plaintiffs deposited the rest amount of Taka 20,000/- in order to get a decree for specific performance of contract. The defendants No. 1-5 during pendency of the suit, tried to transfer of the property elsewhere in collusion with each other and as such the plaintiffs published a warning notice in the daily Ittefaq on 27.07.2010. The defendants No. 1-5 published a notice in the daily Kaler Kantha on 02.11.2010 stating the fact that the power of attorney dated 04.08.1999 has been cancelled on 29.07.2010. The plaintiffs filed a rejoinder of the paper publication dated 21.11.2010 and thereafter filed the above numbered suit.

3.            The defendants No. 1-5 entered appearance and contested the suit by filing a written statement dated 25.07.2007 denying the material averments made in the plaint stating, inter alia, that since the plaintiff No. 2 failed to take any steps on the basis of power of attorney, they cancelled the same on 29.07.2010. Their further case was that they had not taken any money from the plaintiff No.2 Roksona Ameer and RAJUK did not accept the power of attorney, as such, the power has not been acted upon. The defendants No. 1-5 got sale permission from RAJUK and transferred the suit property on 21.04.2013 in favour of one Sakura Saber at a consideration of Taka 40,00,00,000/-and prayed for dismissal of the suit.

4.            The plaintiff examined as many as 4 (four) witnesses, namely, P.W. 1 Zia Uddin, P.W. 2  Abdur Rahim, P.W. 3 Yunus Howladar and P.W. 4 Kabir Ahmed and they were also cross-examined by the defendants side  while the defendants No. 1-5 produced as many as 2 (two) witnesses  and they were also cross-examined by the plaintiffs. The trial Court after hearing the parties dismissed the suit by the impugned judgment and decree dated 20.11.2014 mainly on the ground that the plaintiff did not pray for any consequential relief for cancellation of the deed of cancellation of power of attorney. Another reason for dismissal of the suit was that the plaintiff could not proof the alleged transaction made between the parties. Being aggrieved by the impugned judgment and decree dated 20.11.2014 the plaintiff has preferred this appeal. During pendency of the appeal, the plaintiff filed an application for amendment of the plaint inserting a prayer for consequential relief of the cancellation of the deed of power of attorney and the same was allowed by the judgment and order of this Court dated 17.09.2015. Against the order of amendment of plaint, the defendant No. 1 went to the Appellate Division and initially leave was granted in Civil Appeal No. 201 of 2016. However the aforesaid Civil Appeal was dismissed by the Appellate Division subsequently and therefore, maintained the order of the High Court Division amending the plaint. Accordingly, the plaintiff-appellants deposited advalorum court fees.

5.            Mr. Abdul Wadud Bhuiyan, learned Advocate appearing for the appellants, at the very outset, submits that both the registered agreement for  sale and the power of attorney executed on the same day on 04.08.1999 and the power of attorney were drafted by the learned Advocate Md. Yunus Howladar  (P.W.1) who identified the executants of the bainapatra and the  same were executed in presence of some other witnesses,  namely, Abdul Hye and one Mahmud Hossain both are brothers-in-law of Md. Atiqur Rahman, the defendant No. 1 and as such the allegation as raised by the defendants  with regard to execution of power of attorney by undue influence is not correct at all inasmuch as the defendants failed to prove such undue influence. Having referred to the Clause 21 of the power of attorney Mr. Bhuiyan the learned Advocate submits further that the power of attorney was being with consideration, it was irrevocable and it cannot be revoked unilaterally in defying the provision of section 202 of the Contract Act, 1872. Mr. Bhuiyan submits further that the deed of agreement and the power of attorney should be read together and on the plain reading of the bainapatra it is apparent that the defendants took certain amount from the plaintiff No. 1 and the plaintiff No. 2 executed last bainapatra in favour of the plaintiff No.1 by virtue of the said power of attorney dated 04.08.1999. Mr. Bhuiyan, learned Advocate next submits that since the power of attorney is coupled with interest and as such it is not revocable. Mr. Bhuiyan further submits that the plaintiff No.2  spent huge amount of money in conducting the case, so it cannot be said that she failed to take any steps by virtue of power of attorney and as such the power of attorney has been acted upon and thus it cannot be cancelled unilaterally. Mr. Bhuiyan next submits that the defendants No.1-5 in violation of injunction order transferred the property in favour of one Sakura Saber on 21.04.2013 who mutated his name on 22.04.2013 in the office of RAJUK and as such the subsequent transfer by the principal is void and inoperative. Mr. Bhuiyan next submits that no notice has been served before cancellation of the power of attorney and as such cancellation of the same was illegal.  He next submits that the P.W. 1 Zia Uddin is the attesting witnesses of both the deeds of bainapatra as well as the power of attorney and as such he has got direct knowledge about the transaction and was competent to depose in the Court. The learned Advocate seeks to rely on the two decisions reported in 67 DLR (AD) (2015) 240 and AIR 1969 (Supreme Court) 73. 

6.            Mr. Md. Nurul Amin, learned Advocate appearing for the respondents submits that on 04.08.1999 on the date of execution of bainapatra a power of attorney was executed in favour of the plaintiff No.2 by the defendants but no consideration money was passed against the power of attorney and the said power of attorney was not acted upon since no permission was accorded from the RAJUK to do the activities on the strength of the power. The learned Advocate submits further that according to clause 22 and 24 of the lease deed dated 13.03.1961 acceptance of power of attorney by the RAJUK is a must and the power of attorney holder must apply to the Deputy Director of RAJUK along with attested copy thereof and three attested signature of the power of attorney holder and one passport size photograph of the power of attorney holder and the principal but in the instant case the plaintiff No.2  never went to the RAJUK with the power of  attorney before 19.10.2010 and as such the power of attorney was not acted upon. Mr. Md. Nurul Amin next submits that an order of injunction was granted on 06.08.2012 not to transfer the property to anybody else by the trial Court and that injunction order was stayed on 08.10.2012 by the High Court Division in First Miscellaneous Appeal No. 8 of 2012 and thereafter the defendants No. 1-5 got sale permission on 24.03.2013 from RAJUK in order to transfer the property and the defendants executed and registered sale deed in favour of one Sakura Saber on 21.04.2013 when no restraining order was available upon the RAJUK. Mr. Md. Nurul Amin, learned Advocate next submits that the evidence of the P.W. 1 Zia Uddin is not an admissible evidence since he has no personal knowledge about the transaction allegedly made between the plaintiff No. 2 and the defendants. In support of his submission the learned Advocate has referred to a decision of Indian Supreme Court in the case of Man Kaur (Dead) by IRS Vs.-Hartar Singh Sangha passed in Civil Appeal Nos. 147-148 of 2001.

7.            Mr. Md. Nurul Amin, learned Advocate next submits that when the plaintiff No.2 acted against the interest of the defendants No.1-5 they had cancelled the power of attorney on 29.07.2010 and the defendants served a legal notice through registered post upon the plaintiff no.2 informing her about the fact of such revocation of power of attorney. The learned Advocate next submits that before 19.10.2010 the plaintiff no.2 never went to the RAJUK for according permission or for acceptance of the power of attorney and hence the same was not acted upon. Mr. Md. Nurul Amin, learned Advocate next submits that it is the settle principle of law that in order to get the decree the plaintiff must prove his case.  Mere a statement in the plaint is no evidence in the eye of law unless it is proved by examining a competent witness on oath. Basing on the testimony of an attesting witness who has no personal knowledge about the alleged facts of transaction, the suit cannot be decreed. To substantiate his submission the learned Advocate referred to reliance on the case reported in 16 BLD (1996) 519 and 6 BLT (AD) (1998)1.  He finally submits that the trial Court on consideration of the material evidence on record rightly dismissed the suit and the appellant could not find out any infirmity with the judgment of the trial Court and as such the appeal is liable to be dismissed. 

8.            We have heard the submissions of the learned Advocates for both the parties and perused the impugned judgment of the trial Court and have gone through the materials on record including the exhibits and the evidences of the parties.

9.            It appears that the appellant preferred the aforesaid suit with a prayer that the power of attorney dated 04.08.1999 is still in force and the deed of cancellation of power of attorney dated 29.07.2012 is illegal, void and without jurisdiction. The trial Court framed as many as 4(four) issues to determine the suit. The parties adduced witnesses as P.Ws and D.Ws. in order to prove their respective cases and after hearing of the parties the suit was dismissed.

The question arises before this Court whether the judgment and decree passed by the trial Court is liable to be interfered with or not. Since the suit is involved with regard to the question of revocation of power of attorney admittedly executed by the defendants No. 1-5 in favour of the plaintiff No. 2, we consider it prudent not to involve us or make any comment about the other proceedings pending in connection with the property in question in different courts including the Appellate Division which might affect the merit of those litigations inasmuch as the cancellation of power of attorney has no nexus with the agreement for sale that has been executed before cancellation of the power of attorney. Moreover, we are not dealing here with the validity of the agreement for sale and no issue regarding it had been framed by the trial Court. The defendants No. 1-5 executed and registered a power of attorney in favour of the plaintiff No.2 Roksona Ameer on 04.08.1999 in order to look after the suit property including the permission to sale of the same. At a later stage on 29.07.2009, the power of attorney had been revoked by another registered instrument. We have examined the power of attorney dated 04.08.1999 wherefrom it transpires that the attorney was given authority to negotiate the terms for sale, to settle the price, enter into the agreement for sale and sale the schedule properties with or without building etc. Clause 21 of the power of attorney contains that- “This power of attorney being for a consideration is irrevocable and shall be binding on us and our successors and heirs.” Neither mode of consideration, nor extent of consideration was recorded in the power of attorney, nor it is found that the power of attorney is coupled with interest except the aforesaid wordings. If the holder of power of attorney has not invested any money by herself/himself or paid any sum to the principal the power of attorney may be cancelled at any time assigning reasons of such cancellation. In the instant case from the deed of revocation of power of attorney, it appears that the principal revoked it assigning the reasons amongst others to the effect that- “as the purpose for which the attorney was appointed has been exhausted and in the context of the present unavailable circumstances, we have decided to handle the mater directly and by ourselves.” Except the power of attorney executed couple with interest all other power may be revoked at any time by the principal.  From the recital of the power of attorney, it does not appear that the agent herself has an interest in the property and hence such agency can be revoked unilaterally without prejudice of such interest. The question of agreement for sale made between the appellant No. 1 Khan Md. Ameer and the respondents No. 1-5 is altogether a different transaction of which the litigation is pending before the Appellate Division. Let us address the question whether before cancellation of the power of attorney a notice to that effect is a must or not. It appears that the provision for giving notice before cancellation of power of attorney has been incorporated in the new enactment of the Powers of Attorney Act, 2012 which was not expressly provided in repealed Act, 1982 thereof. It is not imperative to settle that the notice was served or not before cancellation of the power as we are of the opinion that the power of attorney in question is not a power coupled with interest and hence the same is revocable. Furthermore, since the power of attorney was revoked on 27.09.2009 before coming into force of new enactment, 2012, as such, we are of the view that  giving notice or no notice  has not debarred the principal to revoke it as the same appears do not have coupled with interest of the agent. The submissions of the learned Advocates for the respondents that lessee shall not sell, charge, mortgage, exchange the suit property without prior permission from RAJUK, the lessor, is also a different question. As part of due diligence exercise we looked into the provisions of RAJUK with regard to the acceptance of the power of attorney by it. Wherefrom it transpires that for the purpose of transfer of a lease-hold property, there is a provision to accrue permission from RAJUK and the matter of transfer of the property, if not registered in the office of lessor, the lessor will not be bound to recognize or accept any person as lessee of the property in place of the transferor. Since the permission from RAJUK is a pre-requisite, as such, devoid of such permission renders the power-of-attorney as ineffectual and unenforceable. The fiduciary relationship between the buyer and the attorney, husband and wife, is nothing but a sham since the attorney never acted in favour of her principal rather she has always been acting for her husband, the other party. We could not understand why the appellant kept silent long about 10 years to take permission from RAJUK for acceptance of the power of attorney or for accordance of permission to sale the property. From the materials on record, we do not find that the holder of power of attorney has ever approached to the RAJUK in order to accept the same in the office of RAJUK before 19.10.2010. It also appears that when RAJUK did not accept the power of attorney at last the holder of the power of attorney i.e. the plaintiff No. 2 moved this Court invoking writ jurisdiction and the Rule was issued and the same is still pending. The transaction between the plaintiff No. 1 and the defendants whatever may be made with regard to execution of agreement for sale is altogether a matter for another proceeding, namely, suit for specific performance of contract wherein the plaintiff got a decree from this Court and the respondents went to the Appellate Division and the same is  also still pending.

10.        With regard to the admissibility of the evidence of P.W. 1 Zia Uddin, we are of the view that this P.W. 1 has no personal knowledge with regard to the transaction allegedly made between the plaintiff No. 2 and the defendants No. 1-5 to show that the power of attorney is coupled with interest. However since the facts surrounding transaction between the plaintiff No.1 and the defendants No.1-5 is pending in another forum we refrain from making elaborate discussions on this issue. The defendants side denied about the fact of execution of agreement for sale with  the plaintiff No. 1 and  that they did not receive any part of consideration money from him would also be decided in the suit  for specific performance of contract whether the agreement for sale was a valid contract or not.

11.        Considering the facts and circumstances of the case, we do not find any merit in the appeal.

12.        Accordingly, the appeal is dismissed however there will be no order as to costs.

         Communicate a copy of this judgment at once. 

Ed.