MRS. UMADEVI NAMBIAR versus THAMARASSERI ROMAN CATHOLIC DIOCESE REP BY ITS PROCURATOR DEVSSIA’S SON REV. FATHER JOSEPH KAPPIL

Citation: [2022] 5 S.C.R. 579 · Decided: 01-04-2022 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2022] 5 S.C.R. 579
579
MRS. UMADEVI NAMBIAR
v.
THAMARASSERI ROMAN CATHOLIC DIOCESE REP BY ITS
PROCURATOR DEVSSIA’S SON REV. FATHER JOSEPH
KAPPIL
(Civil Appeal No. 2592 of 2022)
APRIL 01, 2022
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Transfer of Property Act, 1882: ss. 41, 3 – Power of Attorney
– Alienation of Property – In the instant case the appellant executed
a general Power of Attorney in favour of her sister – After sometime
the said power of attorney was cancelled by the appellant – But in
the meantime the appellant’s sister executed four different documents
in favour of third parties, assigning/releasing some properties –
Thereafter the appellant filed suit against the assignees/releasees
and the same was decreed but later the appellant came to know that
the latter had sold the property to the respondent – Appellant filed
another suit seeking partition and separate possession of her share
in the suit property and the same was decreed – The respondent
preferred appeal against the decision before the High Court and
the same was allowed on the ground that the appellant failed to
seek relief of setting aside the document of tranfer even though the
appellant has constructive notice of such alienation u/s 3 of the Act
and therefore the appellant was not entitled to a decree of partition
and the fact that the transferee cannot be held to have excercised
‘reasonable care’ as required by the Proviso to s. 41 of the Act is of
no help as the appellant has acquiescenced to such alienation by
not seeking the relief of setting aside the document of transfer –
Hence instant appeal – Held: It is a fundamental principle of law
of transfer of property that ‘no one can confer a better title than
what he himself has’ (Nemo dat quod non habet) – There was
concurrent finding of both the trial court and the High Court that
the respondent did not excercise reasonable care as required by the
Proviso to s. 41, which if they had excercised they could have easily
found out that there was no power of sale with the holder of the
power of attorney – Since the drafting of power of attorney was
plain and simple by which the holder was empowered to lease out
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SUPREME COURT REPORTS
[2022] 5 S.C.R.
the property, power to execute document offering property as security
for any borrowal and there was no mention of any express power to
sell and therefore the alienation made the appellant’s sister (Holder
of Power of Attorney) was illegal and as the vendors of the
respondent did not have any title they had nothing to convey –
High Court order is set aside and order of trial court is restored.
Transfer of Property Act, 1882 – s. 3, Explanation I and II –
Interpreatation Clause – Constructive Notice – Legal Position –
Two things are important for the interpretation clause to come into
effect so far as ‘constructive notice’ is concerned (i) wilful abstention
from an enquiry or search; and (ii) gross negligence – Explanation
I and Explanation II under the interpretation clause are applicable
to the person acquiring an immovable property, the transaction
relating to which is required by law to be effected by a registered
instrument.
Suit of Partition – Cancellation of alienation – When
necessary – Legal Position – It is not always necessary for a plaintiff
in a suit for partition to seek the cancellation of the alienations –
There are several reasons behind this principle – One is that the
alienees as well as the co- sharer are still entitled to sustain the
alienation to the extent of the share of the co-sharer – It may also
be open to the alienee, in the final decree proceedings, to seek the
allotment of the transferred property, to the share of the transferor,
so that equities are worked out in a fair manner.
Allowing the appeal, the Court
HELD: 1. The deed of general Power of Attorney executed
by the appellant in favour of her sister on 21.07.1971, did not
specifically contain any power of sale. Therefore, the trial Court
as well as the High Court held in no uncertain terms that the
appellant’s sister was not competent to sell the property to the
predecessor-in-interest of the respondent. It remains a plain and
simple fact that the deed of Power of Attorney executed on
21.07.1971 contained provisions empowering the agent: (i) to
grant leases under Clause 15; (ii) to make borrowals if and when
necessary with or without security, and to execute and if
necessary, register all documents in connection therewith, under
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