Smt. Bhatori
Vs. Smt. Ram Piari [1996] INSC 870 (30 July 1996)
Ramaswamy,
K. Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (7) 210 1996 SCALE (5)752
ACT:
HEAD NOTE:
O R D
E R
Heard
counsel for the appellant.
Pursuant
to notice issued on November
22, 1988, Mr. Uma Dutta
had appeared for the respondent. Subsequently, he reported on January 6, 1995 that he was instructed not to
appear in the matter. He sought for and was granted permission to withdraw from
the case. Thereafter, none appeared for the respondent. Initially, the case was
adjourned since consequent upon reference doubting correctness of Mithilesh
Kumar & Anr. v. Prem Behari Khare [(1989) 2 SCC 95] decision by a
three-Judge Bench was awaited. The controversy is no longer res judicata. In
view of the judgment of three-Judge Bench in R. Rajagopala Reddy v. Padmini Chandrashekharan
[(1995) 2 SCC 630], wherein it was held that the Benami Transaction Prohibition
Act is prospective in operation, the question in this case is:
whether
the sale of the appellant's land to the wife of the second respondent, Ram Mehrar,
holder of power of attorney of the appellant is valid in law? It is seen that
Ram Mehrar had general power of attorney not only to engage a counsel and
conduct litigation on behalf of the appellant, but can also mortgage, alienate
or transfer possession of the agricultural land to anyone whosoever after
obtaining the exemption from the appropriate authorities. It is seen that
notification under Section 4(1) of the Land Acquisition Act acquiring the land
was published in January 1979. Notice, thereafter, was given to the appellant
on March 28, 1979. When the appellant demanded from
the second respondent in August 1979 the return of her Power of Attorney, he
did not return it. On the other hand, he promised that he would not act
detrimental to her interest. The second respondet appears to have field a suit
on August 23, 1979 in which he impleaded the appellant
as party-defendant. It is the case of the appellant that the second respondent
engaged two advocates, one Mr. Mitter Sain on behalf of himself and other Ram Kishan
for the appellant.
The
counsel appearing for her informed her had produced damage to the appellant
depriving her of the valuable property denuding right, title and interest to claim
compensation in respect of her lands acquired by the Government. Having been
defrauded, she is entitled to lay to suit for declaration of title and other reliefs
in the suit.
It
would, therefore, be a clear case of fraud played by the respondent upon the
appellant. The fraud unreveals the contract and it is void. The courts below
have committed grave error by not appreciating the fraud played by the
respondent in proper perspective.
The
appeal is accordingly allowed. The judgments and decrees of the courts below
are set aside. In the circumstances, the suit is decreed with exemplary costs
throughout quantified at Rs.10,000/- at each of the stages including in this
Court.
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