Budhiya Vesta Patel & Ors. Vs. Nirmala Jayprakash Tiwari & Ors. 
INSC 297 (21 April 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. OF 2010
[Arising out of SLP(C) Nos. 21108-21110 of 2007] SHANTI BUDHIYA VESTA PATEL
& ORS. .... Appellants Versus NIRMALA JAYPRAKASH TIWARI & ORS. ....
CIVIL APPEAL NO. OF 2010 [Arising out of SLP(C) No. D33349 of 2007]
Mukundakam Sharma, J.
2. In the
present appeals, the appellants have challenged the legality and validity of
the order dated 12.10.2007 passed by the High Court of Judicature at Bombay
whereby the High Court dismissed all the three Civil Applications preferred by
the appellants herein seeking recall of an earlier order dated 13.06.2006
passed by the High Court which was based on the consent terms duly signed by
all the parties.
order to properly appreciate the precise nature and scope of the controversy
arising in the present appeals, it would be appropriate as well as expedient to
set out a brief statement of pertinent facts. The original appellant, Budhiya
Vesta Patel, was the predecessor-in-interest of the present appellants.
Vesta Patel was appointed as a watchman by one R.K. Tiwari, who was cultivating
grass on the suit property since 1954-55, to take care of the suit property and
for this a Kachcha shed on the suit property was provided to him. In due course
of time, Budhiya Vesta Patel extended the shed to construct a chawl known as
Budhiya Patel Chawl consisting of 38 rooms, which were let-out by him.
the death of the real owner of the suit property, Mr. Anant Mahadeo Tambe,
husband of Leela Anant Tambe, respondent no. 7 herein, the suit property stood
recorded in the name of respondent no. 7. By means of a consent decree passed
in Suit No. 1230 of 1992 between respondent no. 7 and M/s. Hitesh Enterprises,
respondent no. 8 herein, the latter became the owner of the suit property.
5. In the
year 1999, Budhiya Vesta Patel filed a suit against respondent no. 7 and said
R.K. Tiwari, the predecessor-in-title of Respondent nos. 1 to 6 herein, before
the Bombay City Civil Court, Bombay being Suit No. 5163 of 1999 seeking a
declaration that he is the owner of the suit property by adverse possession.
Since said R.K. Tiwari also claimed title to the suit property, he also filed a
Against this, a counter-claim being Counter Claim No. 11 of 2002 seeking
eviction of Budhiya Vesta Patel and his tenants from the suit property was
filed by respondent no. 7 and respondent no. 8. The aforesaid suits were
contested and on the basis of the pleadings of the parties, issues were framed
and evidence was led.
trial Court by its judgment and order dated 10.02.2003 and 11.02.2003 dismissed
the suit filed by Budhiya Vesta Patel and allowed the counter claim filed by
respondent Nos. 7 and 8. The trial Court negatived Budhiya Vesta Patel's 3
claim of ownership of the suit property by adverse possession since his initial
possession of the suit property was a permissive possession.
Aggrieved by the said judgment and order, several appeals came to be filed
before the High Court of Bombay. Budhiya Vesta Patel had filed two appeals,
being F.A. No. 1388 of 2003 and F.A. No. 1389 of 2003; the former against the
dismissal of the suit filed by him and the latter against the decree passed
against him in the counter claim. The third appeal being, F.A. No. 1390 of
2003, was preferred by one Yusuf Vali Mohd.
(respondent no. 9 herein), who was the Power of Attorney holder of Budhiya
Vesta Patel. Respondent Nos. 1 to 6 also filed an appeal against the judgment
and order of the trial Court which was registered as F.A. No. 1523 of 2003.
However, subsequently, the same was withdrawn.
the pendency of the aforesaid appeals, Budhiya Vesta Patel died on 05.12.2004.
On 07.01.2005, each of the present appellants executed an irrevocable Power of
Attorney in favour of respondent no. 9. On the basis of the said Powers of 4
Attorney, respondent no. 9 filed three separate applications being Civil
Application Nos. 3180 of 2005, 3181 of 2005 and 992 of 2005 in the aforesaid
three appeals wherein he prayed that the legal representatives of Budhiya Vesta
Patel, i.e., the appellants be brought on record in all the three appeals in
place of Budhiya Vesta Patel.
26.04.2006, the appellants executed a Power of Attorney in favour of one
Narender M. Patel. It is alleged by the present appellants that respondent no.
9 colluded with respondent no. 8 and, therefore, respondent no. 9 forced and
coerced them to enter into a compromise with respondent nos.
7 and 8,
which was strongly objected to by the appellants. On this, the appellants
further allege that they were threatened with dire consequences by the
the appellants got filed three complaints dated 01.05.2006, 17.05.2006 and 23.05.2006
with the police against respondent nos. 8 and 9. However, it is alleged that
despite this, respondent no. 9 for himself and for and on behalf of the
appellants as their Power of Attorney holder entered into consent terms with
respondent nos. 7 and 8 in F.A. No. 1389 of 5 2003 and thereby submitted to the
decree of eviction. The High Court, by its order dated 13.06.2006, allowed the
aforesaid applications filed by respondent no. 9 and also disposed of the said
appeals after taking on record the consent terms entered into between
respondent nos. 7 and 8 on one hand and respondent no. 9 on the other.
Subsequent to filing of the consent terms, the names of the tenants were
deleted from the array of the parties. No appeal was, however, filed by any tenant.
appellants filed, before the High Court, three civil applications being Civil
Applications Nos. 3628 of 2006, 3629 of 2006 and 3630 of 2009 praying for
recall of aforesaid order dated 13.06.2006 alleging that fraud had been played
upon the High Court by filing the said consent terms. By a common order dated
12.10.2007, the High Court dismissed the aforesaid applications. Hence the
parties are, in appeal, before us.
Before we proceed to give an account of the submissions made by the counsel appearing
for the parties, we wish to make note of a development that took place after
filing of this SLP by 6 the appellants. After this SLP was filed, respondent
no. 9 filed a civil application before the High Court praying for setting aside
the consent decree dated 13.06.2006 on the ground that respondent no. 8 had
failed to perform his obligation under the consent terms, i.e., payment of Rs 1
crore and 15 lakhs to him.
Court, by an order dated 06.07.2009, dismissed the said application.
may now direct our attention to the rival submissions made before us by the
Rajeev Dhawan, learned senior counsel appearing for the appellants, submitted
that the aforesaid consent terms were filed without the knowledge and consent
of the appellants and as such the consent decree was passed without taking the
consent of the appellants who were necessary parties. It was also submitted
that the purpose behind executing a General Power of Attorney in favour of
respondent no. 9 by Budhiya Vesta Patel and, upon his death, by the appellants
was to safeguard their property by issuing clear instructions to him. It was
the stand of the Dr. Dhawan that the fraudulent act of the 7 respondent no. 9
in arriving at a settlement with the respondent nos. 7 and 8 and consequently
filing the same in the High Court without obtaining the consent of the
appellants amounted to a breach of the scope of the authority conferred on him
by the appellants and thus the consent decree passed by the High Court was a
nullity. Dr. Dhawan tried to further assail the validity of the consent terms
as also the consent decree on the ground that the terms of the compromise
arrived at were iniquitous.
was further submitted that since fraud had been played by respondent no. 9 on
the appellants by trying to siphon off the properties belonging to the
appellants, the Court has a responsibility to protect the rights and interests
of the appellants and therefore the consent decree is required to be set aside
and quashed. In the course of his submissions, Dr. Dhawan also referred to the
three complaints filed by the appellants with the police against harassment and
threats given to them by respondent nos. 8 and 9. Dr. Dhawan pointed out before
us that coercion and goon tactics, in addition to fraud, 8 had been employed by
respondent nos. 8 and 9 to force the appellants to sign the consent terms.
was further submitted that the High Court erred in dismissing the applications
filed by the appellants seeking recall of its earlier order. The High Court
failed to see through the monstrous designs of respondent no. 9 even though
ample material was placed on record and allegations of fraud were clearly made
before the High Court.
the other hand, Mr. Ashok H. Desai, Mr. Dushyant Dave and Mr. Jaydeep Gupta,
learned senior counsel appearing for the respondent Nos. 7 and 8 as also
respondent No. 9 strongly refuted the aforesaid submissions while bringing to
the notice of the Court that, in fact, Budhiya Vesta Patel had himself entered
into a Development Agreement dated 12.01.1994 with respondent no. 9 whereby the
former transferred his rights, title and interest in the suit property to the
latter for a consideration of Rs. 2,00,000/- which was fully paid by respondent
no. 9 to the Budhiya Vesta Patel and accepted by him prior to the execution of
the said agreement. It 9 was further submitted that the irrevocable Powers of
Attorney which were executed in favour of respondent no. 9 by Budhiya Vesta
Patel and, upon his death, by the appellants made the acts, which were carried
out by respondent no. 9 in the best interest of the appellants, binding on the
appellants and that there existed no valid ground for setting aside the
compromise arrived at between the parties and the consent decree passed by the
was also submitted that as the appellants had failed to establish that under
the terms of the Power of Attorney which had executed in his favour by the
appellants, respondent No. 9 was not authorized to enter into a settlement of
the kind he had entered, it could not be said that there was a conflict of
interest between the appellants and respondent No. 9 who was the agent of the
the light of the rival submissions made by the counsel appearing for the
parties, we have perused the entire record before us. There is no dispute with
regard to the fact that a Development Agreement dated 12.01.1994 had been
entered 10 into between Budhiya Vesta Patel and respondent no. 9 whereby and
whereunder Budhiya Vesta Patel transferred his rights, title and interest in
the suit premises in favour of respondent no. 1 for a consideration of Rs
2,00,000/-. The records show that the said amount was fully paid and also that
the said agreement was registered with the office of the Sub- Registrar. Thus,
by entering into the said agreement and accepting the said consideration in
full and final satisfaction for the transfer of the suit property in favour of
the respondent no.
Budhiya Vesta Patel divested himself of his right, title and interest in the
suit property. Pursuant to the said agreement, Budhiya Vesta Patel executed an
irrevocable Power of Attorney dated 17.02.1994 in favour of respondent no. 9
for a period of 15 years.
may here refer to some of the relevant portions of the aforesaid agreement,
which are being reproduced hereinbelow:
WHEREAS it is hereby further agreed by and between the parties hereto that the
Developer shall be at full liberty to assign, transfer the benefit of the
Agreement in respect of the aid property to party or parties of his choice at
such terms and conditions as to be or he may deem fit and proper without any
further 11 consultation or consent of the Owner in that behalf
consideration payable by the developer to the Owner for his share right, title,
interest has been fixed at Rs. 2,00,000/- (Rupees two lakhs only) and the said
consideration has been paid by the Developer to the Owner on or before the
execution of these presents (the receipt and payment whereof the Owner doth
hereby admit and acknowledge and of and from the same do hereby forever
discharge the Developer "
Further, a Deed of Confirmation dated 15.12.1995 duly registered on the same
date was executed between Budhiya Vesta Patel and respondent no. 9 by which
Budhiya Vesta Patel confirmed that the aforesaid Development Agreement was
subsisting, valid and in full force and would be binding on the heirs,
executors, administrators and assigns of the parties to the said Development
Agreement. This was followed by a Declaration dated 23.08.2001 by Budhiya Vesta
Patel wherein he acknowledged the rights, title and interest of the respondent
no. 9 over the suit property, the receipt of consideration of Rs 2,00,000/- and
extended the period of the said Power of Attorney indefinitely and undertook to
ratify and confirm the acts done by respondent no. 9.
appellants have challenged the consent decree passed by the High Court praying
that the same should be set aside as it was obtained by playing a fraud upon
them. We do not feel persuaded to hold so for a number of reasons which are
being set out in the paragraphs below.
23. It is
interesting to see the appellants challenge the consent decree passed by the
High Court, particularly when each one of them had, upon the death of Budhiya
Vesta Patel, executed an Affidavit-cum-Declaration as well as separate Powers
of Attorney dated 07.01.2005 in favour of the respondent no. 9. All the said
Powers of Attorney were irrevocable and duly registered for valuable
consideration. A bare perusal of the said Affidavits- cum-declarations would
reveal that the appellants knew that respondent no. 9 was the constituted
attorney of their predecessor-in-interest and that the suit property had been
transferred to respondent no. 9 for a consideration of Rs 2,00,000/-. It is
pertinent to note that in the said Affidavits- cum-Declarations each of the
appellants had undertaken to be bound by all the deeds and documents entered
into between 13 their predecessor-in-interest and respondent no. 9 and they had
also confirmed and ratified the said deeds and documents thereby conferring
right on respondent no. 9 to enforce those at all times in the future. In fact,
in the said affidavits, the appellants categorically admitted the right of
ownership of respondent no. 9 over the suit property.
executing the said Powers of Attorney in favour of the respondent no. 9, the
appellants had consciously and willingly appointed, nominated, constituted and
authorized respondent no. 9 as their lawful Power of Attorney to do certain
deeds, things and matters. The relevant clauses are being extracted
hereinbelow: - "6. To sign Petition or present Petitions or Petition, to
file suit and to sign and verify claims, written statements, pleadings, applications,
returns, and to appear, act in any Court- Civil, Criminal, Court Receiver and
/or Revenue, original or appellate or Revisional or before any competent
authority, Officer, or Officer for in respect of or in connection with the
aforesaid and with buildings etc. thereon and/or any other proceedings, suit or
appeal in connection with the management and superintendence of my said lands
for any purpose whatsoever necessary.
compromise, compound and/or negotiate and settle any dispute or disputes and
refer the same to Arbitration."
25. It is
thus crystal clear that the appellants had not only confirmed and ratified the
deeds and documents entered into between their predecessor-in-interest and
respondent no. 9 but also constituted respondent no. 9 as their lawful attorney
authorizing him, inter alia, to sign petitions, appear before the Courts and
also to compromise or compound disputes. In fact, the appellants are estopped
from questioning the acts done by respondent no. 9.
learned counsel appearing for respondent No. 7 placed reliance on a decision of
this Court in Jineshwardas (D) by LRs. SCC 372 to argue that the party
executing the Power of Attorney is bound by the acts of the Power of Attorney
holder and that the Court could accept a compromise terms entered into by the
Power of Attorney holder on behalf of the parties and that such a compromise
would be a valid compromise.
are of the considered view that in the aforesaid circumstances, the appellants
could not be said to have any right to assail the consent decree passed by the
High Court. We do not think it proper for the appellants to question and
challenge the consent terms signed and submitted by respondent no. 9 on their
behalf which were duly accepted and acted upon by the High Court and which we
also find to be just and reasonable. The fact that under the consent terms the
appellants were paid a sum of Rs 10,00,000/- when they were not entitled to the
same also reinforces our conviction that the consent terms arrived at were
noted by us in one of the preceding paragraphs, the predecessor-in-interest of
the appellants had nothing remaining in the suit property after he had
transferred the same under the said development agreement to respondent no. 9 for
a full and final consideration of Rs 2,00,000/-. Thus, the predecessor-in
interest of the appellants had no right, title or interest subsisting in the
suit property. The appellants are the legal heirs of Budhiya Vesta Patel and as
such they could not have claimed a title better than that of Budhiya Vesta
Patel. The 16 predecessor-in interest of the appellants had relinquished his
title, right or interest over/in the suit property in favour of respondent no.
9. A general proposition of law is that no person can confer on another a
better title than he himself has.
in this regard may be made to the decisions of this Court in Mahabir Gope v.
Harbans NArain Singh 1952 SCR 775; Asaram v. Mst. Ram Kali 1958 SCR 986 and All
India Film Corporation Ltd. v. Raja Gyan Nath (1969) 3 SCC 79.]
29. It is
also the case of the appellants that there was no due compliance with the
provisions of Order 23 Rule 3. The counsel appearing for the appellants
submitted that responsibility of the Court is to see that the consent terms
have been arrived at in satisfaction of all the parties and that injustice is
not caused to any party. The counsel further submitted that one of the modes by
which Order 23 Rule 3 ensured this was by requiring the compromise agreement to
be in writing and signed by the parties.
was strongly refuted by the counsel appearing for the respondents stating that
it is well settled that under Order 23 17 Rule 3 of the Code of Civil
Procedure, 1908, a compromise may be signed by the counsel or the Power of
for the respondents referred to and relied upon the Bank of India and Others
(1992) 1 SCC 31 where it was held thus:
To insist upon the party himself personally signing the agreement or compromise
would often cause undue delay, loss and inconvenience, especially in the case
of non- resident persons. It has always been universally understood that a
party can always act by his duly authorised representative. If a
power-of-attorney holder can enter into an agreement or compromise on behalf of
his principal, so can counsel, possessed of the requisite authorisation by
vakalatnama, act on behalf of his client. Not to recognise such capacity is not
only to cause much inconvenience and loss to the parties personally, but also
to delay the progress of proceedings in court. If the legislature had intended
to make such a fundamental change, even at the risk of delay, inconvenience and
needless expenditure, it would have expressly so stated."
31. It is
settled position of law that the burden to prove that a compromise arrived at
under Order 23 Rule 3 of the Code of Civil Procedure was tainted by coercion or
fraud lies upon the party who alleges the same. However, in the facts and
circumstances of the case, the appellants, on whom the burden 18 lay, have
failed to do so. Although, the application for recall did allege some coercion,
it could not be said to be a case of established coercion. Three criminal
complaints were filed, but the appellants did not pursue the said criminal
complaints to their logical end.
32. It is
a plain and basic rule of pleadings that in order to make out a case of fraud
or coercion there must be a) an express allegation of coercion or fraud and b)
all the material facts in support of such allegations must be laid out in full
and with a high degree of precision. In other words, if coercion or fraud is
alleged, it must be set out with full particulars. In Bishundeo Narain v.
Seogeni Rai reported in 1951 SCR 548 it was held thus:
We turn next to the questions of undue influence and coercion. Now it is to be
observed that these have not been separately pleaded. It is true they may
overlap in part in some cases but they are separate and separable categories in
law and must be separately pleaded.
28. It is
also to be observed that no proper particulars have been furnished. Now if
there is one rule which is better established than any other, it is that in cases
of fraud, undue influence and coercion, the parties pleading it must set forth
full particulars and the case can only be decided on the particulars as laid.
be no departure from them in evidence. General allegations are insufficient 19
even to amount to an averment of fraud of which any court ought to take notice
however strong the language in which they are couched may be, and the same
applies to undue influence and coercion. See Order 6 Rule 4 of the Civil
the present case, the appellants have, however, failed to furnish the full and
precise particulars with regard to the alleged fraud. Since the particulars in
support of the allegation of fraud or coercion have not been properly pleaded
as required by law, the same must fail. Rather the Affidavits-cum- Declarations
executed by the appellants indicate that no coercion or fraud was exercised
upon the appellants by respondent no. 8 or 9 at any point of time and thus the
consent decree cannot be said to be anything but valid.
this regard, we wish to refer to the judgment of this Court in the case of
Shankar Sitaram Sontakke v. Balkrishna Sitaram Sontakke reported in AIR 1954 SC
352 wherein this Court while dealing with the nature of a consent decree held
in para 9 as under:
The obvious effect of this finding is that the plaintiff is barred by the
principle of res judicata from reagitating the question in the present suit. It
is well settled that a consent decree is as binding upon the parties thereto as
20 a decree passed by invitum. The compromise having been found not to be
vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree
passed thereon has the binding force of res judicata.
may also refer to the decision of this Court in Loonkaran v. State Bank, Jaipur
reported in (1969) 1 SCR 122 where interpreting Section 202 of the Indian
Contract Act, this Court held thus:
202 of the Contract Act provides that where the agent has himself an interest
in the property which forms the subject matter of the agency, the agency
cannot, in the absence of an express contract, be terminated to the prejudice
of such agent. It is settled law that where the agency is created for valuable
consideration and authority is given to effectuate a security or to secure
interest of the agent, the authority cannot be revoked."
appellants also alleged that they had revoked the Powers of Attorney executed
by them in favour of the respondent no. 9 by filing complaints with the police.
We are of the considered opinion that this contention of the appellants is
devoid of merit. Although there is no denying the fact that three police
complaints had been filed on three different dates with the police against the
alleged harassment and threats by 21 respondent nos. 8 and 9, it is difficult
to understand how the Powers of Attorney executed by the appellants or their
predecessor-in-interest stood revoked. The record of the case reveals that each
of the complaints was filed by a separate person - the first complaint was
filed by the appellants themselves, the second by an Advocate and the third by
one Narendra M. Patel, who is himself a builder. It is significant to note that
all these complaints came to be filed when said Narender M. Patel came into the
picture. Further, it is important to take note of the fact that all the Powers
of Attorney executed in favour of respondent no. 9 as also all the deeds and
documents entered into between the predecessor-in-interest of the appellants
and respondent no. 9 were duly registered with the office of the Sub-Registrar.
Neither any document nor any of the Powers of Attorney was ever got cancelled
by the appellants.
appellants also further contended before us that they had revoked the Powers of
Attorney executed in favour of respondent no. 1 by executing a fresh Power of
Attorney in favour of said Narendra M. Patel. It is significant to note that
despite filing of the complaints with the police nothing was done 22 by the
appellants to bring the allegations contained in the said complaints to the
notice and knowledge of the High Court although that could have been
comfortably done had the appellants wished to do so. The Power of Attorney in
favour of said Narendra M. Patel was executed by the appellants on 26.04.2006
whereas the first complaint was filed with the police on 01.05.2006 and the
consent terms were entered into on 22.05.2006. The consent decree was actually
passed by the High Court on 13.06.2006.
appellants, thus, had ample time and opportunity with them to bring the said
allegations to the notice and knowledge of the High Court at any time between
26.04.2006 and 13.06.2006. The appellants had considerable amount of time
available with them. As noted earlier, with regard to the complaints filed, the
appellants did not take any follow up action to bring them their logical end.
39. It is
crystal clear that the appellants chose not to avail an opportunity which was
available to them. In such circumstances, it will not be appropriate to say
that the deeds 23 and documents as well as the Powers of Attorney executed in
favour of respondent no. 9 stood revoked merely by filing complaints with the
police. We cannot lose sight of the fact that a registered document has a lot
of sanctity attached to it and this sanctity cannot be allowed to be lost
without following the proper procedure.
any event, if we direct our attention to the contents of the Power of Attorney
executed by the appellants in favour of said Narender M. Patel, we find that
the stand taken by the appellants throughout that they had, by executing a
Power of Attorney in favour of Narender M. Patel, revoked the Powers of
Attorney executed in favour of respondent no. 9 to be baseless.
a look at the terms of the Power of Attorney executed in favour of Narender M.
Patel would show to the contrary. The relevant portion of the said Power of
Attorney is being extracted hereinbelow: - "6. To correspond with all the
body cooperate for otherwise including government and semi- government bodies
and Municipal Corporation of Greater Bombay and make applications etc.
respect of any of the matters pertaining to the said the property and the said
FURTHER that these presents and the powers hereby given shall in no wise extend
or be deemed or continued to extend to repeal, revoke, determine or make void
any other power or powers of attorney at any time heretobefore or hereafter
given or executed by us to or in favour of any other person or persons for the
same or any distinct or other purpose or purposes but such power or powers
shall remain and be of the same authority, validity and power, force and effect
as if these presents had not been made."
Before we part with the discussion, we wish to make note of the fact that
respondent no. 9 has, in the counter-affidavit filed in this Court, prayed for
declaring the consent terms to be cancelled and annulled on the ground that the
consent terms have been rendered infructuous due to the failure of respondent
no. 8 to perform his obligations as per the consent terms. We have a strong
feeling that a money game is being played. Since the stakes are high, each
party before us is trying to draw the maximum advantage. To us, there seems to
be no other reason for respondent no. 9 having adopted such a course of action.
view of the foregoing discussion, we are of the considered view that entering
into the compromise as also filing of the same in the High court of Bombay by
respondent no. 9 on behalf of the appellants was without any fraud and well
within the scope of his authority. Accordingly, we find no merit in the present
appeals and the same are hereby dismissed. There will be no order as to costs.
.........................................J. [Dr. Mukundakam
................................ ......J. [R.M. Lodha]
April 21, 2010.